Based on the so-called “Rome-III-Regulation”, the Danish advocate general at the European Court of Justice has spoken out against the recognition of private divorces based on Islamic law within the EU. He argues that women were not granted the same access to divorce as men. The final judgement of the Court is still missing, however, legal experts already raise alarm. Mathias Rohe, Islamic scholar, lawyer and director of EZIRE, is among the skeptics. In an interview with the broadcaster Deutsche Welle, he explains, why:
Rohe understands that many people were worried when they heard that “Sharia Law” was applied in Germany. However, even though there were problematic aspects within Sharia, it should not be understood as an unidimensional concept but gave room for different interpretations. One could even advocate human rights based on Sharia.
Furthermore, for Muslims, in matters of marriage and divorce, governmental laws were applied. In states with an Islamic majority such as Egypt or Indonesia, these laws were based on Islamic legal frameworks. According to Rohe, it is thus more appropriate to speak of “Islamic legal frameworks” than of “Sharia Law”. Partially based on EU-law and partially based on German law, these legal frameworks were applied in Germany in matters of marriage and divorce. However, this did not only hold true for Islamic legal frameworks. Frenchmen in Germany, for instance, were also married and divorced based on French marriage law.
Accordingly, Rohe would find it problematic if the ECJ did not recognize any divorces based on Islamic legal frameworks any longer. Such a conceptional affirmation of human rights might , in singular cases, do more harm than good. Rohe prefers a jurisdiction focussing on individuals: “If the result of a structural discrimination is an advantage for someone in an individual case, we will give her this advantage. Not in other cases though, of course”, Rohe says. It was important that the jurisdiction focused on the people and took care of individual fates, as well.