Divorce without borders

Divorce without borders

Together with her privately-funded Max Planck Research Group in Hamburg, Nadjma Yassari does educational work on Islamic family law and highlights the multi-facetted and flexible nature of the law in Islamic countries.

Divorce Syrian-style or Saudi-Arabian-style? What is the situation regarding the right to the "morning gift" or dower? How is the wellbeing of children taken into account. Is the recognition of adoption in accordance with German law possible? Providing a comprehensive picture of the overall system and not getting caught up in the minutiae of the conditions prevailing in individual countries is one of the motivating forces behind the dedicated work of Nadjma Yassari and her Research Group. From her base at the Max Planck Institute for Comparative and International Private Law in Hamburg, Yassari studies the situation behind the scenes from a long-term perspective and examines differences and commonalities between legal systems.

"Islamic law does not have a good image," bemoans Yassari. "It is usually reduced to Islamic criminal law and its corporal punishments. As a result, many people fail to realize how multifaceted and open to reform Islamic law and, hence also, the law in Islamic countries really is," explains the Research Group Leader. Specialist knowledge of the legal systems in question is required here. This is acquired by the scientists through the attendance of conferences and further training, and above all through on-site observation in the relevant countries. They follow court cases and analyze case law through their interaction with local actors. They record the historical, social and economic backgrounds of the countries and attempt to gain an in-depth understanding of the prevailing legal culture.

Given the increasing migration to Europe and Germany, in particular, the Research Group’s work is becoming ever more important. German judges need to be familiar with the law in Islamic countries, as, like Italian, Turkish and Spanish law, it increasingly has to be applied here. The marriage of two Italians in Munich, for example, is subject to Italian law. If two Iranians who married in their home country wish to divorce in Hamburg, then Iranian law applies.

Myth of the immutability of Islamic law does not stand up to scientific scrutiny.

The courts and authorities are increasingly reliant on Nadjma Yassari’s expert reports. Her research unit, which is unique in the world, adopts an interdisciplinary and comparative-law approach to the 30-plus legal systems with family and inheritance law based entirely or in part on the religious law of Islam. The task would appear to be an almost impossible one as it is the judges who interpret and develop the positive law through their judgements. They must pronounce on social and technical progress and on religious fanaticism. What is the position of religious law in relation to in vitro fertilization, female emancipation and the interpretation of Sharia law by the self-proclaimed, so-called "Islamic State" with its practice of archaic punishments? "The essence of Islamic law is the dynamic approach adapted to its interpretation and application," says Yassari. "Because Islamic law has to be deduced and interpreted from the sources, the divine dimension melds with the human analysis, which is fallible and pluralistic." She goes on to refer to the most important insight to have emerged from her research: the myth regarding the immutability of Islamic law does not stand up to scientific scrutiny. "Islam does not prohibit liberal views," stresses Imen Gallala-Arndt, one of the Group’s scientists. "Reforms are entirely compatible with Islam," she adds, dismissing one of the prevalent stereotypical views.

Thus, Nadjma Yassari’s Research Group is building a bridge between the perception of Islamic law in Europe and its highly nuanced interpretation in the Islamic countries. In 2009, the German Federal Court of Justice referred to Yassari’s work and recognized the Islamic "morning gift" or dower as a "commitment under matrimonial law"; by doing this, it ensured the financial security of divorced Muslim women. The German Federal Office of Justice also altered its negative stance on adoptions in Islamic countries recently and in this way clarified the legal status of children adopted from Iran and Iraq. The Research Group’s scientists provide support to German authorities and courts through translations and expert reports. They present lectures to public registrars and police officers, and are in demand as independent voices with ministries, parliaments, political think tanks and the German Islam Conference. They do not see their role as being limited to the provision of information and believe that their main contribution lies in fostering an understanding of a foreign legal system.

Researching the law in a region that has experienced various political upheavals in recent decades poses a particular challenge. This applies above all to Syrian family law, knowledge of which is currently in very high demand due the many family reunifications of Syrians entitled to political asylum in Germany. For this reason, the Research Group has established a project with lawyers among the refugees aimed at determining the current legal situation in Syria. This integrative aspect of their work is very important to Yassari, who is Iranian by birth and, in addition to speaking German, Farsi, French and English, also has a knowledge of Arabic. Through their involvement in the Research Group, the Syrian lawyers experience esteem and integration. In turn, they provide valuable information for the German legal system on how family law is interpreted in their home country and make an important contribution to the management of the increasingly cosmopolitan nature of everyday life in their host country.

Image: MPI for Comparative Public Law and International Law.