Book Review: Muslim Marriage in Western Courts: Lost in Transplantation
| DOI | 10.1177/1023263X1101800411 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| Author | Pauline Kruiniger |
| Subject Matter | Book Review |
Book Reviews
18 MJ 4 (2011) 563
Pascale Four nier, Muslim Marriage in Western Courts: Lost in Transplantation,
published in the Series Pra kash Shah (ed.), ‘Cultural Diversit y and Law’, Ashgate,
Farnham/Burl ington 2010, xx + 206 pp., hardback, £ 55, ISBN 978–1–4094– 0441–5.
§1. INTRODUCTION
Let me introduce … Leila a nd Samir.
Suppose that they, being of Pakistani origin, live i n Vancouver, Canada. ey marry at
the age of 18. ree years later Samir repudiates Leila because of her sexual preference
for women. Leila then asks the secular, Canadia n court for the enforcement of mahr,
the nuptial – monetar y or non-monetary – gi of the bridegroom to the bride in
consideration of a Muslim marria ge practice. e court choose s to culturally recognize
and, thus, to enforce mahr, an amount of $ 50,00 0. Aer all, t he parties had chosen to
marry under t he Muslim tradition k nowing ‘fu ll well that provision for Maher was a
condition of doing so’.1 e court even adds an amount of $ 37,747.17 owed by Samir to
Leila as a result of the d ivision of family assets…
Now imagine that Leila and Samir, both of Egy ptian nationality, live in Berlin,
Ger ma ny. 2 ey have been married for 15 years . Leila aer becoming increasi ngly aware
of her fully insular and subserv ient life as a wife and mother, wants a divorce. Much to
her surprise and horror the secular Germa n court applies Egy ptian Islamic family law
to her case, through G erman conict rules, as Lei la is a non-German citizen. And since
Leila is the one ling for divorce, the court holds that she ha s to give up her right to
mahr and even has to pay back the amount t hat she had already received at her wedding.
Instead of nding German conceptions of freedom, equal ity and women’s rights, she is
confronted with the ver y Islamic laws she had hoped to escape.
Leila and Sam ir, a ctitious couple, feature in varyi ng roles in Pascale Fournier’s book
Muslim marriage in Western Cour ts: Lost in Transplantation.3 From a broader perspective
the book touches upon issues such as how to deal w ith legal pluralism, how to handle
religion and law, or identity claims of minorit y citizens wit hin a specic majorita rian
public order. More concretely, how to deal with unfa miliar and alien, relig ious, ‘Islamic’
law4 in Western secular courts? Religion-based claims received by Western, secular
1 Based on inform ation from the case Nat hoo v. Nathoo [1996] BCJ No 2720 (SC), see P. Fournier, Muslim
Marriage in Wester n Courts: Lost in Transplant ation (Ashgate, Farnha m/Burlington 2 010), p.66–69.
2 Based on Fourni er’s script ‘Leila: e G erman-Egy ptian-“Foreig n Bride”’, see P. Fournier, Muslim
Marriage in Wester n Courts, p.142–143 and footnote 2, p.142.
3 See in part icular P. Fournier, Muslim Marr iage in Western Courts , p.24–29 and p.137–147.
4 In this sentence ‘ Islamic’ is put into brackets i n order to emphasize its use for the s ake of convenience
as a collecti ve and general notion. Actu ally it is incorrect to u se the notion ‘Islamic law’ a s the Islamic
law, as one single legal s ystem does not exist. Dep ending on its context it denote s for example classical
Islamic or Sh ar i’a law, or (contemporar y) Moroccan or Pakist ani law.
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