Hanseatisches Oberlandesgericht in Bremen; 2023-04-24; 4 VA 1/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGHB:2023:0424.4VA1.22.00
Date: 2023-04-24
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0424(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the recognition of a divorce granted in Iran, which was decided by the Hanseatisches Oberlandesgericht in Bremen (hereinafter ‘the Court of First Instance’).
The former spouses, dual nationals of Germany and Iran, were married in Iran in 1989 and have been living separately since 2015. In 2020/2021, the husband (hereinafter ‘the plaintiff’) initiated divorce proceedings in Iran. On 20 October 2020, the Family Court of Tehran issued a certificate stating that it was impossible to continue the marriage. This decision was upheld by the Court of Appeal of Tehran Province. In May 2021, the plaintiff performed the divorce ceremony before a notary in Tehran in the absence of his wife (hereinafter ‘the defendant’).
The plaintiff applied to the Landesjustizverwaltung Bremen (State Justice Administration Bremen) for the divorce to be recognised in Germany. The application was forwarded to the President of the Court of First Instance, who granted the divorce on 26 October 2022 without hearing of the defendant. The defendant challenged this decision, arguing that her right to be heard had been violated and that the Iranian divorce should not be recognised because it was incompatible with fundamental principles of German law (public policy), particularly the principle of gender equality.
The Court of First Instance examined the defendant’s application for judicial review of the President's decision. It found that her right to be heard had indeed been infringed but concluded that the current judicial proceedings had remedied this procedural irregularity. Consequently, the procedural objection did not invalidate the recognition.
The Court of First Instance then considered the substance of the application for recognition. It was found that the Iranian divorce was of a judicial nature and not private since it involved a formal judicial procedure. The court referred to Article 26 of the Iranian Family Protection Act, which requires judicial involvement in all divorces, including those initiated by the husband under Article 1133 of the Iranian Civil Code. This legal framework requires that all divorces, including those traditionally regarded as private repudiations (talaq), must be processed through the courts in order to be judicially recognised.
The court also examined whether the Iranian divorce met the criteria for recognition under German law, in particular Article 109(1) of the FamFG (1). It found no grounds for refusing recognition on the grounds of international jurisdiction or procedural fairness, noting that the defendant had been legally represented in Iran and had participated in the proceedings. The court also rejected claims that the recognition would violate German public policy, including gender equality, on the grounds that the divorce would have been granted under German law given the long separation of the spouses since 2015. It is also not contrary to German public policy that the adjustment of pension rights was not regulated in the Iranian divorce, as the recognition relates only to the divorce. The defendant’s claims for alimony after the divorce are not excluded by the recognition of the Iranian divorce.
The Court of First Instance concluded that the divorce met the requirements for recognition under Article 107 ff. of the FamFG. Consequently, the defendant’s application for judicial review was dismissed, and the President's recognition decision was upheld.
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction).