In the case of a marriage divorce, German family law may be applicable following a decision by the BGH, even if the couple lived abroad for a long time (Ref.: XII ZB 543/20).
When a marriage with a foreign aspect is dissolved, the question often arises as to which national law is applicable. International family law is guided by the Hague Maintenance Protocol (HMP) for maintenance claims. According to this, the last common habitual residence of the couple is an important criterion for determining which national law applies, explains the law firm MTR Legal Rechtsanwälte, which also advises its clients in international family law.
However, in the decision of May 11, 2022, the BGH emphasized that the habitual residence of the entitled party can recede if there is a closer connection to the law of another state. This may be the case, for example, if the stay abroad is only temporary due to professional obligations.
In the underlying case, two German nationals initially lived for several years in Scotland. The man then entered into employment with an international corporation, which stipulated that he would work as an expatriate for a limited amount of time at various international locations of the company. Thus, the couple first moved to the Netherlands for several years, where they got married. They continued on through Brunei to the USA (Texas). There, the marriage was dissolved by a district court. The couple had previously made a divorce settlement agreement.
While the man continued to live in Texas, the woman moved to Germany after the divorce. Here she sued for post-marital maintenance. The lawsuit was unsuccessful in the initial instances, as the courts considered Texan law to be applicable. However, the BGH saw it differently.
The stay in Texas was not intended to be permanent, as the man was regularly transferred. Therefore, the criterion of the last common habitual residence was not decisive. A comprehensive assessment is necessary to determine whether there is a closer connection to the law of another state, so that the habitual residence of the entitled party recedes, according to the BGH.
Even in the EU, there is no uniform international family law. This highlights the importance of making significant agreements early on, such as in a prenuptial agreement. Lawyers experienced in international family law provide advice.
