Matrimonio islámico, orden público y función promocional de los derechos fundamentales

Abstract

Civil Code establishes the minimum requirements for the effects of religious marriage under the Spanish Law. The Islamic marriage regulated on Article 7 of the 1992 Agreement of the Spanish State with the Islamic Commission of Spain requires the presence of these requirements, which can perfectly concur with other conditions demanded by the Sharia if they respect the requirements laid down by the State regulation. In order to understand what is at stake, it must be noted that two elements that can be present in the Islamic marriage (polygamy and repudiation) could damage Spanish public order and international one’s, as far as they could clash to human dignity and fundamental rights of one of the spouses. Nevertheless, some situations arising from these two elements could have certain effects in a Secular State like Spain, where the human dignity and fundamental rights of the citizens are essential values of the legal system in force. This should be possible if an attenuated interpretation of the meaning of public order is made, on the basis of the promotional function of the fundamental rights established by Article 9. 2 Spanish Constitution.