KG Berlin; 2022-04-28; 1 VA 2/22
Decision by national courts in the field of European Union law — ECLI:DE:KG:2022:0428.1VA2.22.00
Date: 2022-04-28
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0428(52)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen living in Spain (hereinafter ‘the plaintiff’) applied for the recognition of the divorce of his marriage to his spouse having Dutch nationality (hereinafter ‘the defendant’), who also lives in Spain.
The basis for the application submitted to the Senate Department for Justice, Diversity and Anti-Discrimination (hereinafter ‘the Senate Department’) was the deed of a Spanish notary concerning the declaration of the plaintiff and the defendant on the dissolution and divorce of their marriage by mutual consent (hereinafter ‘the notarial deed’). The spouses had no children and waived the execution of a pension equalisation.
After the Senate Administration rejected the application, the plaintiff turned to the Kammergericht Berlin (hereinafter ‘the Court of First Instance’) with his application for a court decision.
The Court of First Instance has jurisdiction pursuant to Article 107(5) of the FamFG (1). The notarised deed was drawn up without court proceedings, i.e. without the involvement of a judge, based on a divorce agreement made between the plaintiff and the defendant. An out-of-court divorce by mutual consent was considered in Germany but ultimately was not carried out. Whether the various extrajudicial divorces in the respective Member States are judgements within the meaning of Article 21(1) of the new Brussels II Regulation (2) has also not yet been conclusively clarified.
The Court of First Instance stayed the proceedings and referred the following questions to the Court of Justice of the European Union for a preliminary ruling:
1. Does a divorce based on Articles 82, 87, 89 and 90 of the Código Civil (Spain) (3) constitute a judgement on the divorce of a marriage within the meaning of the new Brussels II Regulation?
2. In the event that the previous question is answered in the negative: Is a divorce based on Articles 82, 87, 89 and 90 Código Civil (Spain) to be treated in accordance with the provisions of Article 46 of the new Brussels II Regulation on authentic instruments and agreements?
(1) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit vom 17. Dezember 2008 (Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction of 17 December 2008).
(2) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(3) Código Civil (Civil Code).