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2005-11-22 - Court of cassation, n. 03-14.961

Family · France · Maher · Ordre public · Religious marriage

Maher is not contrary to ordre public

Key facts of the case - Mr X. and Mrs Y. contracted a nikah marriage according to the hanafite rite before the Cazi of Karikal in India. Later on, they settled in France. In 1990, the civil court of Bourg-en-Bresse pronounced their divorce. Some difficulties arose when Mr X. claimed the separation of property regime while Mrs Y. claimed the common property in French law. The civil court and the court of appeal both held that the common property regime should apply. The courts observed that the marriage settlement was limited to one “maher” clause only, which would be the price (prix de vente) of the woman to marry. Hence, this clause goes against French ordre public, which cannot tolerate the sale of human beings.

Main reasoning of the court - The Court of cassation overturns those rulings by holding that the “maher” is a convention settling the consent to marry of the spouses, accompanied with the payment of a dowry. This is not contrary to French international ordre public and is not in breach of Article 3 of the civil code.

See the decision: 2005-11-22 - Court of cassation, n. 03-14.961.