In the case of a divorce, according to a decision by the BGH, German family law can be applicable even if the couple lived abroad for a long time (Ref.: XII ZB 543/20).
When dissolving a marriage with an international connection, the question often arises as to which national law should apply. International family law is oriented towards the Hague Maintenance Protocol (HMP) for maintenance claims. Accordingly, the last common habitual residence of the couple is an important criterion for determining which national law applies, explains the commercial law firm MTR Rechtsanwälte, which also advises its clients in international family law.
However, the BGH stated in its decision of May 11, 2022, that the habitual residence of the maintenance claimant may take a back seat if there is a closer connection to the law of another state. This can be the case, for example, if the stay abroad is only temporary due to professional commitments.
In the underlying case, two German nationals initially lived for several years in Scotland. The man then took up employment with an international corporation, which stipulated that he work as an expatriate for a limited period at various international locations of the company. The couple first moved to the Netherlands for a few years, where they got married. They then moved through Brunei to the USA (Texas), where the marriage was dissolved by a district court. Before this, the couple had concluded a divorce settlement agreement.
While the man continues to live in Texas, after the divorce, the woman moved to Germany. Here, she filed a claim for post-marital support. The courts in the initial instances ruled against her, considering Texas law applicable. However, the BGH held a different view.
The stay in Texas was not intended to be permanent, as the man was regularly reassigned. Therefore, the criterion of the last common habitual residence is not decisive. A comprehensive evaluation is necessary to determine whether there is a closer connection to the law of another state, so that the habitual residence of the maintenance claimant might be secondary, according to the BGH.
There is also no uniform international family law within the EU. This highlights the importance of making important agreements early, for example, in a marriage contract. Experienced lawyers in international family law offer advice.
