نوع مقاله : پژوهشی
موضوعات
عنوان مقاله English
نویسنده English
In recent decades, the growing number of Muslim immigrants in Western countries has led to the invocation of certain rules derived from Islamic jurisprudence within new legal frameworks and before the courts of non-Muslim nations. One of the most significant manifestations of this development is the filing of dower (mahr) claims by Muslim women in foreign courts, a phenomenon that has compelled the courts of the forum to examine the nature of the dower and reconcile it with the corresponding institutions of domestic law. The aim of this article is to examine the crucial role of the characterization stage in private international law through the study of German court practice in characterizing the dower in cases involving a foreign element. Over the past half-century, German courts have endeavored to characterize the nature of the dower, which has no corresponding institution under German law, by examining its functions, and to provide a solution for identifying the applicable rule of conflict of law. A pivotal moment in this effort was the 2009 decision of the German Federal Supreme Court (Bundesgerichtshof), which characterized the dower as a ‘marriage effect’ under Article 14 of the Introductory Act to the Civil Code (EGBGB). Nevertheless, even after this decision, the German legal system's approach to the subject continues to evolve. This study, drawing on developments in German law regarding the dower, emphasizes the importance of the characterization process and its decisive role in private international law, reflecting the nuances of this stage, particularly in cases where multiple connecting factors from diverse cultural contexts are involved.
کلیدواژهها English