Revista IBDFAM Família e Sucessões, v. 51 (may/june) – Belo Horizonte: IBDFAM, 2022
Published by Eliza Cerutti and Cassio S. Namur, partner at Tortoro, Madureira & Ragazzi Advogados

THE BORJA BRAÑANOVA CASE

Borja Brañanova accomplished becoming the first father to obtain joint custody of his children in an Arab country. If not enough, his case influenced the creation of a family law for non-Muslims by the United Arab Emirates, the first of this kind in the world.

Spanish, mining engineer, top executive of a German multinational company, Borja moved to the United Arab Emirates about 20 years ago, where he later married a South African, with whom he had two children. In 2016, when his son was only 2 years old and his daughter was a newborn, Borja’s wife filed a divorce suit before an Islamic Court. The entire process began in accordance with Sharia, Islamic law, which supported requests such as housing, pension, estimated values of travel to South Africa, where the woman’s family of origin resided, totaling an estimated amount of 10 million dollars. What worried Borja the most, however, was the fact that, according to the Sharia and the age that the children were at the time, custody would be attributed exclusively to the mother, without regulation of the coexistence with the father, who would assume the function of provider.

The first challenge faced by Borja was removing Sharia as applicable law. Luckily, he found in the Islamic conflict law itself the rule according to which, to resolve multi-connected conflicts involving personal status, the husband’s national law, in this case, Spanish law, could be invoked. And so he did.

However, the second challenge was taking the Spanish law test. To demonstrate to the Islamic Court what Spanish law provided for situations of divorce, alimony and child custody, the entire part of the Spanish Civil Code was translated and legalized into Arabic. In addition, although shared custody was considered the preferred format in Spain since 2013, according to the Supreme Court jurisprudence, the topic had not been subject to legislative changes and, therefore, the Spanish Civil Code was not updated according to this guideline. It needed to gather a range of complementary documents to demonstrate this understanding.

The third challenge, once the applicable law had been determined and its content had been proved, was convincing the Islamic judges, accustomed to apply local law and known to be marked by a strong religious and cultural influence, to effectively decide in accordance with what guided the Spanish law. So much that the sentence was handed down in accordance with Islamic law, charging Borja with a high financial condemnation and, as he feared, restricting him from taking care of his children and from living with them. In Borja’s words, “it was a classic Sharia verdict.”

The decision was reversed on appeal, after the Spanish law demonstration was reinforced through an opinion prepared by two retired ministers of the Spanish Supreme Court and a specialist in International Family Law. The appeal judgment was handed down in November 2018 and with it, for the first time in the history of the United Arab Emirates, both parents were granted joint custody of their children.

Although it was a relatively quick case compared to Brazilian standards (about two years), it was the result of hard work involving a qualified team made up of professionals from three countries (United Arab Emirates, Spain and South Africa).

The case and the achievement of Borja Brañanova gained such visibility in Spain that the Confederation for the Best Interest of Children in Spain (CEMIN) proposed his candidacy and the entire team of lawyers who advised him to the Award of Princess of Asturias de la Concordia. Media pressure, culminated with the candidacy for an important award in Spain, had a lot of impact on the United Arab Emirates, given its strategic interest in being internationally recognized as a country open to change, modernity and, above all, openness to cultural difference.

PRIVATE INTERNATIONAL LAW SOLUTIONS

On the threshold of this new millennium, global communication is one of the society’s characteristic features, causing an increase in transnational family occurrences and, consequently, demanding the resources of private international law’s application. In this context, as well understood by Nadia de Araujo:

There is a dichotomy between individual rights and specific needs of family law, which demands special protection for the family group interests. While the former are characterized by their universal character, the family, on the contrary, is closely linked to each society’s culture, traditions and religion.

Private international law has the important role of managing conflicts from the point of view of cultural differences. Erik Jayme already said, that he “finds his reason for being in the diversity of States’ laws and in the need to find just solutions in the international community”.

By the classical method of private international law (conflictual method), when dealing with relationships of a private nature, that is, relating to personal status, family rights, contractual relationships or civil liability, connected with more than one legal system, it is sometimes necessary making use of the so-called “conflict of jurisdictions” and “conflict of laws” to resolve claims. Each country contains rules that give criteria of international jurisdiction, indicating what connection is necessary with the legal system for the courts to be exclusively or concurrently competent. Likewise, each legal system establishes the connecting elements, domicile, nationality, place of celebration, place of performance, etc., which will indicate the substantive law to be applied, whether domestic or foreign.

In addition, the complexity of an international divorce case stems from other issues that are in the cultural differences field, including the fact that divorce is the result of a delicate historical evolution, specific to each country and each culture; that it is not just a matter of admitting divorce, but of how it is reached and what its consequences are. The differences between different state rights in regulating the dissolution of marriage are very expressive, apart from the susceptibilities that concern cultural conflicts, as well explained by Alfonso-Luis Calvo Caravaca and Javier Carrrascosa Gonzales:

After the ‘conflicts of laws’ in the matter of matrimonial crises, profound ‘conflicts of civilizations’ are perceived. In fact, a strong confrontation between different ways of contemplating and regulating social relations is appreciated. This conflict of civilizations is difficult to resolve with the traditional method of DIPr, based on the selection of ‘a law applicable’ to the matrimony crisis. Explanation: when a state law is applied and not another one, then one civilization triumphs over another, a family model triumphs over another.

The situation becomes more complex when one considers the number of mixed marriages, between spouses of different nationalities and, also, the displaced, between spouses of the same nationality, but residing in different countries. This is proved by the fact that, in 2006, 20% of divorces in the European Union were multi-connected.

To the extent that these relations reach an Islamic country, increase the chances that private nature situations will be taken to the local courts and, therefore, even if private international law leads to the application of foreign law. And it cannot be denied that there is a tendency for them to apply Islamic law, as this is the extent of their competence. This is what happened in Borja’s case, at least until the sentence, as previously seen.

From the point of view of the classical method of private international law, the law of the United Arab Emirates governs that the country has jurisdiction for actions related to the personal status of foreign residents and provides for the possibility that, in these cases, the application of foreign law is invoked, specifically, the husband’s nationality law. Even so, if the law of the parties’ home country does not cover an aspect of the divorce proceeding, the courts have discretion to apply the internal laws.

All these elements were present in the case experienced by Borja Brañanova and, finally, overcoming all the challenges, he managed to have the solution for his case guided by the application of Spanish law. He obtained shared custody of the children and, with that, achieved the protection of the best interests of children with regard to parental equality and the right to family life.

On the other hand, the case materialized a tendency of private international law, which consists of overcoming the classic conflictual method with the creation of substantial resources that respond in a more direct and uniform way. Thus, instead of using the conflict rules to determine the applicable law and the heavy burden of proving foreign law, in 2021 a substantive law was created to regulate family situations applicable to non-Muslims, as well as as well as a special Court to judge such cases, with Arabic and English as official languages.

CREATION OF THE FAMILY LAW FOR NON-MUSLIMS IN THE UNITED ARAB EMIRATES

The United Arab Emirates is characterized as a confessional state, that is, non-laic state. Islam is the official religion and Sharia, the Islamic law, is justice system’s basis. It is, therefore, a right fundamentally based on a divine message, capable of governing and regulating human behavior and social relations because the men who submit to it lends force to this message, because there is individual and community conviction, or even because such a message is adopted by those in power.

In this sense, it can be said that Islamic law is, in principle, immutable, as it would have emanated from the message of God, since all existing laws came from Allah, revealed to men through Muhammad. Thus, the Islamic legal system cannot accept the study historical focus of law as a function of changing life conditions in a given society. On the contrary: the law of Allah was given to man once and for all, it is society that must adapt to the commandment instead of creating its own rules as a constant response to the changes that life’s difficulties impose.

Be that as it may, the prescriptions, rules and commandments of sacred origin interfere in public and private life, organizing social interactions, thus considered the personal statute of the individuals, family, business and economic relationships.

The United Arab Emirates, however, due to all its recent history and political and strategic option of development aimed at global opening, to become one of the largest economies in the Middle East and in the world, was compelled to expand its cultural boundaries in the name of global competitiveness to become one of the most attractive destinations for talent and skills. From this reality, an impressive statistic stands out: among the 11 million inhabitants of the United Arab Emirates, only 11% are locals, all the rest are foreigners.

The Borja Brañanova case directed the spotlight on this reality and the creation of the first civil law governing non-Muslim family affairs was a way to ensure foreigners and non-Muslims the right to be subject to an internationally recognized law that is familiar to them in terms of culture, customs and language, as well as to achieve and protect the best interests of their children, particularly in the event of parental separation, in accordance with the best international practices.

In addition to the material aspects of the law, which will be discussed below, this movement also led to the creation of the first Court dedicated to non-Muslim families affairs, in which all procedures will be bilingual, in Arabic and English, to facilitate the judicial procedures understanding by foreigners and improve judicial transparency.

The Family Law for non-Muslims stands out for being the first in the world with characteristic to create a special regime for foreigners in a given country. In force since November 2021, it proposes regulating civil marriage, divorce, joint custody of children, succession and attribution of paternity.

Its first chapter deals with marriage. According to Islamic law, marriage is religious and can only take place between Muslims or when the groom is Muslim. In addition, the consent of the woman’s guardian is required. The new law introduces the concept of foreigners civil marriage, without requiring the consent of third parties, as long as the will expressed by the spouses is sufficient.

The second chapter deals with divorce and its financial and patrimonial consequences. According to Islamic law, divorce presupposes proof of physical harm and that the couple previously undergoes a procedure to attempt reconciliation. The new law ensures divorce to non-Muslims, whether requested by the husband or the wife, without the need to attribute damage or blame to one of them, and also exempts from the previous attempt at reconciliation. In other words, divorce in the law applicable to non-Muslims is not conditional on a cause, term or condition. The law also defines divorce procedures for non-Muslims, the rights of spouses after divorce, and the judge’s discretion in assessing a wife’s property rights based on various criteria, such as number of marriage years, wife’s age, economic situation of each of the spouses and other considerations that the judge takes into account in determining the wife’s financial rights.

The third chapter deals with child custody after divorce. Custody in the Islamic system gave preference to the mother. The law in question gives way to the concept of shared custody within the scope of the law for non-Muslims, to safeguard family cohesion and preserve the children’s psychological health.

The fourth chapter deals with succession issues, registration of wills for non-Muslims and right of foreigners to draw up a will, allocating all their assets to whomever they wish.

Finally, the law’s fifth chapter regulates proof of paternity for non-Muslim foreigners, providing that the newborn’s proof of paternity is based on marriage or the recognition of paternity.

The law, according to United Arab Emirates’ leaders, “reflects Abu Dhabi’s legislative leadership and the global status it has achieved”; this is not the first time the country has reformed its laws in face of changing times. In 2020, the United Arab Emirates reformed personal Islamic laws to decriminalize premarital sex between couples, loosen restrictions on alcohol consumption, and criminalize honor killings.

FINAL CONSIDERATIONS

As Nietzsche said, whoever has a why faces anyhow.

The Borja Brañanova case could have received the same outcome as so many others that, on a daily basis, frustrate us as human beings and as legal practitioners. Cases in which not even the best technique, ethics or ideal of justice can lead to a solution that can be considered right, because the biggest adversary, sometimes, is the rigor in positions and convictions of those who offer the answers.

What made all the difference, in this case, was the existence of a why. This why was decisive for a divorce with a dispute over custody and property to become a cause. Not Borja’s individual and private cause, but a cause that emanated collective dramas from the 89% of the foreign population of the United Arab Emirates.

This cause, in favor of parental equality and primacy of the children’s best interests, consecrated international principle contained in the Declaration of Principles of the International Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20/11/1989. In fact, it is never too much remembering that the right to family life is extremely important for the formation of their healthy personality as future adults.

By the way, Pietro Perlingieri teaches us, when dealing with the “fatherland power” and minor’s interest:

This intervention increasingly assumes the role of assurance in relation to the office’s incorrect exercise (“patriotic power”) and to the child’s own whim and will. The parental authority exercise is exclusively focused on the minor’s interests. An existential interest, rather than a patrimonial one, which must be identified, in relation to concrete circumstances, with respect to the family’s historicity. In the individuation of this interest, the judge’s assessment, seen here, must be expressed with prudence and balance, identifying itself in the facto situation in light of non-subjective and arbitrary values, but emerging from constitutional personalism.

In the field of private international law, beyond the outcome of Borja Brañanova’s private case, with the correct application of foreign law, it represented in the collective sphere a more efficient and direct alternative solution than the classic conflictual method, by creating a family law applicable to non-Muslims.

Even without ignoring that guiding this legislative movement were the strategic interests of the United Arab Emirates in gaining visibility and recognition as an open and innovative country, reinforcing its global leadership as a destination for new talents, one cannot fail to recognize the legislators sensitivity.

Finally, the novelty and relevance of Borja Brañanova’s case led us to present it in this text, hoping that it will be a source of inspiration for all those who militate for parental equality and protection of children and adolescents’ best interests.