Classification of post-marital severance payments under Moroccan law in German maintenance law
The Higher Regional Court of Stuttgart, in its decision of July 7, 2020 (Case No.: 11 WF 19/19), addressed questions regarding the classification of a post-marital severance payment in the case of a prenuptial agreement concluded and dissolved in Morocco under German maintenance law. The case highlights the complex interface between family law regulations of different legal systems and the effects that occur when claims for separation and post-marital maintenance exist in parallel.
Facts and Issue Overview
In the underlying case, following her divorce, the applicant claimed separation maintenance from her husband, after already having received a severance payment for default (so-called ‘mu’akhar as-sadaq’) from him under Moroccan law. The central question was whether this severance payment after divorce could be treated as fulfillment of maintenance claims within the framework of German law or whether separate maintenance in accordance with § 1361 BGB could be demanded.
Comparative law: Marital compensatory payments in the international context
Moroccan law provides for the so-called Sadaq payment, which is agreed upon at the time of marriage but is not paid immediately, becoming due only upon divorce. Its purpose is to secure the economic situation of the divorced wife. Under German law, § 1361 BGB grants a claim for separation maintenance, which arises already with the separation of the spouses and continues until the divorce is finalized.
What was decisive for the assessment was whether the post-divorce severance paid in Morocco and the separation maintenance under German law are comparable in their purpose or not.
The decision of the Higher Regional Court of Stuttgart: A differentiated approach
In its reasoning, the Higher Regional Court of Stuttgart states that the post-marital severance paid under Moroccan law is purely compensatory in nature in the event of divorce. It is not remuneration for maintenance not paid during the marriage and bears no relation to German separation maintenance, the claim for which arises upon separation, before the divorce becomes legally binding.
The benefit under Moroccan maintenance law does not displace a claim for separation maintenance but instead regulates economic compensation after the dissolution of the marriage. Consequently, claims from both systems can be made in parallel, provided that there is no double payment for identical periods and purposes.
Significance for the handling of international marriages
Due to globalization and increasing freedom of movement in Europe and large parts of the world, cross-border cases of international marriages and divorces are coming increasingly to the forefront. Differences between legal systems, especially regarding the financial consequences of separation and divorce, carry significant risks and uncertainties for those involved. This is exemplified in the case decided by the Higher Regional Court of Stuttgart, which addresses the scope and interpretation of specific compensatory family law benefits in the context of international relationships.
Additionally, the ruling underscores the necessity of carefully examining the precise purpose for which specific payments are made and in which legal framework they were provided. Only in this way can wrongful limitation or double granting of maintenance claims be ruled out.
Interaction between German and Moroccan law in maintenance matters
The examination by the Higher Regional Court of Stuttgart exemplifies that foreign benefits must always be reviewed for their domestic purpose. What matters is not merely the payment of a sum of money, but the legal basis for its creation and the period to which it relates. The distinction between a lump-sum payment due upon divorce under Moroccan law and a claim for separation maintenance under German law demonstrates that both systems serve independent, non-identical purposes.
No double payment – requirement for purpose-driven interpretation
It must be noted that separation maintenance and the Sadaq severance are not due for the same period. With the finalization of the divorce, the claim for separation maintenance ends; only thereafter does the Moroccan severance become due. In this respect – contrary to some assumptions – there is no double payment for the same legal claims, but rather a temporal and substantive delineation of benefits.
Conclusion and outlook
The decision of the Higher Regional Court of Stuttgart emphasizes the importance of a precise understanding of foreign legal institutions when parties are confronted with claims from different legal systems. In international divorce law, the correct classification and assessment of foreign obligations and payments are of central importance to ensure legal certainty and a fair balance for all parties involved.
In particular, companies, wealthy private individuals, and investors with international legal relationships should always incorporate the complex effects of intercultural prenuptial agreements and maintenance obligations under different legal systems into their family law and economic planning.
If you are facing particular challenges in connection with the assessment or handling of international maintenance claims, the classification of foreign severance payments, or overlapping maintenance rules, the lawyers at MTR Legal are available to provide you with further information.
