Private ClientsSuccession, Wealth and Foundations06.09.2022 Newsletter
Federal Court of Justice on maintenance law in divorces of international marriages
When an international marriage is divorced, the question arises as to which maintenance law applies. Normally, the law of the country in which the person entitled to maintenance is habitually resident applies. This only is not the case if the law of another country had, in an exceptional case, a closer connection to the marriage or if the couple made a corresponding choice of law.
This can lead to one spouse being entitled to maintenance under German law, even if the couple previously lived in different countries abroad for over 20 years, got married abroad, divorced there and the spouse liable to pay maintenance only returned to Germany after the divorce. Such a case was decided by the Federal Court of Justice (FCJ) [Bundesgerichtshof, BGH] in a ruling dated 11 May 2022 (docket No. XII ZB 543/20).
German law can apply even if the spouses lived abroad for many years
In the case up for decision, a German couple had lived in different countries during the course of their marriage due to the husband's employment with a global petroleum company. The husband’s job entailed him being employed at international locations for a limited period of four years in each case. After living in the Netherlands for nine years – having extended the period there in the interim - the couple moved to the Sultanate of Brunei for four years and have lived in the US state of Texas since 2012. There, their marriage was divorced in 2017. While the husband continued to live in Texas, the wife returned to Germany after the divorce and sued here for post-marital maintenance.
The FCJ emphasized that the question of the applicable maintenance law was governed by the Hague Protocol of 23 November 2007. According to this, the law of the country in which the person entitled to claim maintenance has his or her habitual residence fundamentally applies. As the wife had returned to Germany, it was German law in this case. Only in cases where there are indications of a closer connection between the marriage and the law of another country can, by way of exception, the habitual residence of the person entitled to maintenance be a subordinate jurisdictional basis behind this closer connection.
Hague Protocol: criterion of the last joint residence has only exemplary character
It is true that the last joint habitual residence of the spouses is stated in the Hague Protocol as a criterion for such a closer connection. However, this is only of an exemplary nature, according to the FCJ. If the last joint residence was only of a temporary nature, the spouses usually would not have established a sufficiently strong connection to this country. There were also no other criteria here that would allow the assumption of a particular proximity to the law of a country other than Germany.
The FCJ already dealt with the issue of international maintenance in 2013 (judgement of 26 June 2013 - XII ZR 133/11). Here, the FCJ affirmed the application of German law as the law of the closer connection in a reversed case, despite the fact that the person entitled to maintenance had her habitual residence in Switzerland. The German-Swiss couple had married in Germany and lived there for 18 years for the duration of their marriage. After their separation, the wife moved back to Switzerland and sued for post-marital maintenance.
Precautionary arrangements should be made
As it is now quite easily possible to live and work in other countries, there is a great deal of legal uncertainty. People with connections to foreign countries - be it through stays abroad or assets located there - would do better not to rely on the prevailing concepts of private international law, such as "closer connection" or "habitual residence" and on their interpretation by the courts.
Potential risks need to be examined at an early stage and eliminated by concluding precautionary arrangements such as prenuptial agreements, wills, and lasting powers of attorney that are recognised in the countries concerned and - as far as possible - contain an explicit choice of law.
However, according to the Hague Protocol, the waiver of maintenance claims is always governed by the law of the habitual residence of the person entitled to the maintenance, even if a choice of law has been made, which means that care must be taken to ensure that the latter recognises such a waiver. In some countries, for example, it is only possible to waive the claim after the marriage has ended.