Classification of subsequent compensation payments under Moroccan law in the context of German maintenance law
The increasing international interconnection of family lifestyles regularly gives rise to questions at the intersection of different legal systems, especially when it comes to the legal classification of payments in the event of separation and divorce. Against the backdrop of a decision by the Higher Regional Court (OLG) of Stuttgart (Case No.: 11 WF 19/19), the following will discuss how a post-marital compensation payment arising from Moroccan law is assessed by German courts in terms of maintenance law.
Background: Separation maintenance and international circumstances
One of the central questions in connection with international divorces concerns maintenance during the separation phase. Under German law, a spouse can assert a claim for separation maintenance for the period between separation and the final divorce decree pursuant to § 1361 of the German Civil Code (BGB). This claim aims to maintain, as far as possible, the previous standard of living as long as the marriage continues to exist legally.
However, when international family law comes into play, the courts require a careful examination of the extent to which foreign provisions can be applied to German maintenance law. In particular, it must be clarified whether benefits granted under foreign law—such as a subsequent compensation payment—are to be qualified as maintenance payments within the meaning of German law and thus have an impact on any entitlement to separation maintenance.
The situation in the case decided
In the underlying case from Baden-Württemberg, the parties’ marriage had been concluded in Morocco under Islamic law and was also dissolved under Moroccan law. During the divorce proceedings, the female spouse was awarded a compensation payment rooted in Moroccan family law. Subsequently, the beneficiary, on account of her German citizenship, asserted a claim for separation maintenance under German law.
In this context, the OLG Stuttgart had to examine whether the Moroccan compensation payment should be credited against or is comparable to a potential German maintenance claim.
Relevance of customary law
Moroccan family law recognizes both the so-called “Mahr” and “Mata’a”—the bride price and a subsequent compensation payment to the wife, which is to be paid after divorce under certain conditions. This endowment has a social security function in Morocco’s predominantly Islamic legal system, but it is not necessarily identical with the objectives and the concept of German separation maintenance.
Decision of the OLG Stuttgart
The OLG Stuttgart emphasized that the Moroccan compensation payment is not equivalent to German separation maintenance. Rather, the court clarified that this compensation is primarily a lump-sum indemnity for the loss of the marital maintenance claim after divorce, but does not cover the ongoing maintenance needs during the separation period. The claims must therefore be differentiated in substance.
This means: Compensation under Moroccan law cannot generally be credited against a potential claim for separation maintenance under German law. The legal institutions serve different purposes; German lawmakers use separation maintenance to protect the existing social status until the dissolution of the marriage. The Moroccan compensation, on the other hand, serves more as a settlement for the terminated marriage.
Analysis of the international application of foreign provisions
The decision of the OLG Stuttgart underscores the necessity not to automatically equate foreign legal provisions with domestic legal institutions. Special emphasis is placed on the respective protective purpose and objective of the foreign benefit. Differences in the purpose of the maintenance payment, assessment and enforceability must be carefully considered. Divorce proceedings involving foreign elements thus illustrate the complexity of the parallel application of various legal systems and the need for a thorough examination in each individual case.
Relevance for cross-border family law matters
The OLG Stuttgart’s ruling has significant practical importance for spouses with bi- or multinational backgrounds, particularly in partnerships where legal systems with differing core concepts converge. If a spouse receives a payment following a divorce under foreign law, it must be carefully examined whether this payment conflicts with possible claims for separation maintenance or can exist alongside them. Individual case assessment remains indispensable.
Conclusion
If a compensation payment is made following a divorce abroad, its relevance under domestic maintenance law depends on the legislative purpose and assessment of the respective German and foreign provisions. German jurisprudence expressly recognizes the different purposes of post-marital compensation and separation maintenance payments and generally considers them incomparable. This differentiated approach underscores the importance of precise legal analysis in cross-border family law cases.
Further details and specifics of the decision can be found in the published ruling of the OLG Stuttgart dated July 7, 2020 (Case No.: 11 WF 19/19), available, for example, at urteile.news.
Those seeking clarity in comparable constellations of circumstances and wishing to examine the integration of foreign legal concepts in the German context will find in MTR Legal Rechtsanwalt contacts with extensive experience in international civil and family law.
