Migration flows, particularly intense in periods of economic crisis, requirea comparison between different social and legal cultures. One of the fields where this comparison appears to be most difficult is family law, and particularly concern to polygamy. More and more often the conflict of laws leads to a legal system that recognises this tool and recognition of a foreign decision that admits polygamy is increasingly required. Two elements need to be taken into account: on the one hand, respect for a different culture, on the other the protection of a given legal system’s fundamental values by means of the public order exception clause (read however, in a modern and not merely nationalistic key). This matter is not limited to national legal systems because Member States and the European Union are also part of international organisations and conventions (e.g. Unesco Convention of 2005) which protect fundamental rights and cultural diversity. The starting point of the analysis is the Charter of the Fundamental Rights of the European Union, which is binding on EU Member States within the limits outlined in article 51 and which expressly recognizes in article 52 need to respect cultural, religious and linguistic diversity. As far as polygamy is concerned, the EU has indirectly faced the matter by adopting two directives: 2003/86 on third country nationals’ right to family reunification, and 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Only the first one however, expressly provides for polygamy. A very important role is played by Member States, which nonetheless regulate polygamy in very different ways. As countries that have traditionally registered a high number of polygamous marriages, the situations of France and United Kingdom will be considered in the paper. In Italy attention to polygamy is related to family reunification; for instance, it is forbidden to issue a visa for family reasons in case of polygamy (article 29, Legislative Decree 286/1998). Where private international law is at stake, EU regulations or Italian law (218/1995) can be applicable. The first refer to the criterion of habitual residence, the second to nationality, apparently more respectful of cultural diversities. However, when the application of these criteria contrast with international public order (as happens in polygamy cases), the judges can invoke the exception clause, as some decisions described in the paper confirm.

Cittadinanza e diversità culturali, con particolare riferimento alla poligamia

BARUFFI, Maria Caterina
2014-01-01

Abstract

Migration flows, particularly intense in periods of economic crisis, requirea comparison between different social and legal cultures. One of the fields where this comparison appears to be most difficult is family law, and particularly concern to polygamy. More and more often the conflict of laws leads to a legal system that recognises this tool and recognition of a foreign decision that admits polygamy is increasingly required. Two elements need to be taken into account: on the one hand, respect for a different culture, on the other the protection of a given legal system’s fundamental values by means of the public order exception clause (read however, in a modern and not merely nationalistic key). This matter is not limited to national legal systems because Member States and the European Union are also part of international organisations and conventions (e.g. Unesco Convention of 2005) which protect fundamental rights and cultural diversity. The starting point of the analysis is the Charter of the Fundamental Rights of the European Union, which is binding on EU Member States within the limits outlined in article 51 and which expressly recognizes in article 52 need to respect cultural, religious and linguistic diversity. As far as polygamy is concerned, the EU has indirectly faced the matter by adopting two directives: 2003/86 on third country nationals’ right to family reunification, and 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Only the first one however, expressly provides for polygamy. A very important role is played by Member States, which nonetheless regulate polygamy in very different ways. As countries that have traditionally registered a high number of polygamous marriages, the situations of France and United Kingdom will be considered in the paper. In Italy attention to polygamy is related to family reunification; for instance, it is forbidden to issue a visa for family reasons in case of polygamy (article 29, Legislative Decree 286/1998). Where private international law is at stake, EU regulations or Italian law (218/1995) can be applicable. The first refer to the criterion of habitual residence, the second to nationality, apparently more respectful of cultural diversities. However, when the application of these criteria contrast with international public order (as happens in polygamy cases), the judges can invoke the exception clause, as some decisions described in the paper confirm.
2014
9788834848579
diritto dell'Unione europea; diversità culturale; poligamia
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11562/839965
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