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Multiculturalism and Family Law: The Case of Greek Muslims
Abstract
Multiculturalism calls for the recognition of the distinct norms and values of minority communities. However, the accommodation of cultural differences, especially in the area of family law, may often be incompatible with the traditional values of Western societies. The aim of this paper is twofold: first, to illustrate the scope of application of Islamic family law in Greece and the problems arising thereof; and second, to seek ways of reconciling the respect for cultural diversity and the protection of human rights. We first elaborate on the scope of application of Islamic law in Greece, by referring to the jurisdiction of the Mufti and the law he applies, as well as to the controversial way in which Greek civil courts deal with the application of Islamic law. We then comment on the coexistence of secular and religious jurisdiction and suggest that a single secular jurisdiction is the only regime that can lead to results consistent with the values of western democracies. Next we propose the use of alternative dispute resolution mechanisms as a unifying framework that is predicated on the values and beliefs shared by the majority and the minority in Muslim Thrace. We illustrate that mediation is the best system as it can allow deviations from state family law and accommodate the parties' deeper religious interests that dictate compliance with Muslim cultural values. However, as an informal procedure it should be based on the unbiased consent of all parties and should not contradict fundamental human values. Protecting the rights of weaker parties is of paramount importance, as Muslim women have experienced social problems such as pervasive gender discrimination that are here discussed in the light of international human rights developments.
... No doubt, were the civil courts to carry out the review of the applied Sharia rules properly, these would be found 'contrary to the Constitution' as a matter of course, and the Mufti decisions would be without legal value (cf. Papassiopi-Passia 2001, p. 410, andTsaoussi andZervogianni 2008, p. 221). However, the opposite idea of what might be dubbed an 'exequatur of convenience' is untenable. ...
Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in NE Greece). However, to produce their effects, Mufti decisions need to undergo review and to be declared enforceable by the civil court. The aim of this article is to explore the relevant legal framework arranged in law 4964/2022 and presidential decree 52/2019, whereby the details of such a judicial review are set out. In particular, this article considers the prerequisite of the exequatur to religious adjudication, and then, it goes through all of the levels over which the said review extends, bringing progressively into focus the review of the scope of jurisdiction, the review of compatibility with the Constitution and the European Convention of Human Rights, and the review of some additional issues raised specifically by presidential decree 52/2019 over and above the points just mentioned. A final remark follows in connection with possible errors committed in religious adjudication—errors of law or fact—which remain beyond the reach of the review.
... an the other, and because they support them from their means" (translated by Yusufali), or "Men are in charge of women, because God hath made the one of them to excel the other, and because they spend out of their property (for the support of women)" (translated by Pickthal). 219 For an exptensive discussion see St. Kofijinis, 2011: 131-137. 220 A. Tsaoussis & El. Zervogianni, 2008. The authors take into consideration the discussion on extra-judicial settlement of family disputes among Muslims in Canada. See also J. Aslam, 2006. of sharia to European standards would not mean the total absorption of the former into the latter, not its disappearance. It would simply reflect the predominance of the majority legal sys ...
Diversity of both nationality and religion is currently a reality in Greece. This reality has no impact on the Greek legal system, which in principle applies without distinction to all Greek citizens and all persons residing in Greece. However, the exceptional recognition of the direct application of religious law and jurisdiction—that is, application without reference to the existing general set of conflict of law rules—to personal status matters of the Muslim minority of Western Thrace has given rise to important concerns regarding the applicable legislation and its impact on the Greek legal order in the context of the current international environment, which provides enhanced protection of human rights. This paper provides a succinct illustration of the management of religious law by a secular state, Greece, as shown in the particular case of this Muslim minority, also with reference to the ad hoc ECtHR judgment in Molla Sali v Greece.
The Molla Sali case, recently heard by the ECtHR, concerns the compatibility of the implementation of Sharia in the family and personal relations of the Muslims of Western Thrace, who remained within the boundaries of the Greek State after the exchange of populations under the Treaty of Lausanne, to the ECHR. The applicant, a Greek national of the Muslim minority of Western Thrace, complained that she could not be beneficiary by testament of her deceased husband’s estate, member of the same minority, since, according to the position of the Court of Cassation, due to a series of international agreements and relevant domestic norms, the law of succession applicable to her case was the Islamic Law that prohibits the testament, instead of the civil law. However, the ECtHR found that the applicant was victim of a violation of article 14 of the ECHR in conjunction with article 1 of Protocol no 1. In this case, the ECtHR considered for the first time the question of the compatibility of a religious community’s separate legal status with the ECHR. The rationale behind the decision is within the framework of the core principles of the Court’s case law on the limits of the autonomy of religious communities and acknowledgement of minority rights. The Court, based on the main line of arguments which constitute the corpus of its jurisprudence on religious and minority issues, ruled that the separate legal status of the Muslim minority cannot justify divergences from the application of the General Law, to the extent that such divergences violate the Greek citizens’ rights enshrined in the Constitution and the ECHR and it condemned Greece on the basis of “discrimination by association”.
A quite common perception about women and property is that women do not have much, at least by comparison to men. Even if women do have property formally in their names, men seem to be the ones who initially acquired it and actually control it. Though there are exceptions—even whole societies that are exceptional—they have a rather exotic air. In the ordinary course of things, we are surprised to find women of great wealth, just as we are surprised to find women who lead Fortune 500 companies. On the other hand, it is hardly news that women are disproportionately represented as heads of household among the poor. Between these extremes of wealth and poverty, women just do not seem to be as "propertied" as men, except insofar as they happen to be located in families headed by men. Indeed, even within the household, the serious money often seems to be at the disposal of the husband, not the wife.
A study of 449 cases administered by four major providers of ADR services showed that mediation was capable of settling 78 percent of cases, regardless of whether the parties had been sent to mediation by a court or had selected the process voluntarily. Mediation also cost far less than arbitration, took less time, and was judged a more satisfactory process than arbitration.