BGH; 2023-05-31; XII ZB 274/21
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:310523BXIIZB274.21.0
Date: 2023-05-31
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0531(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns the annulment of the marriage of a pair of foreign nationals, which was decided by the Bundesgerichtshof (hereinafter ‘the Supreme Court’).
The spouses, both Afghan nationals, married in Afghanistan in 2018, with the husband (hereinafter ‘plaintiff 2’) already residing in Germany and the wife (hereinafter ‘plaintiff 1’) joining him in February 2020. Plaintiff 1 filed for annulment in June 2020, claiming that she had been forced into the marriage. Plaintiff 2 later also sought an annulment, alleging fraudulent deception by plaintiff 1.
The Amtsgericht Saarbrücken (hereinafter ‘the Court of First Instance’) ruled in favour of plaintiff 1 on the basis of Article 1314(2)(4) of the BGB (1) (forced marriage) and did not find the plaintiff’s 2 claim under Article 1314(2)(3) of the BGB (fraudulent deception) to be valid.
Plaintiff 2 appealed to the Saarländisches Oberlandesgericht (hereinafter ‘the Court of Appeal’), which dismissed his appeal for failure to state a cause of action since he did not challenge the annulment of the marriage itself, but only the grounds for annulment applied by the Court of First Instance in relation to the forced marriage. The appeal, which sought only to change the grounds for the annulment, could not be raised in a permissible manner.
Following an appeal by plaintiff 2, the Supreme Court emphasised that plaintiff 2 was independently aggrieved by the findings of the Court of First Instance, which had recognised coercion as a ground for annulment in favour of plaintiff 1 but had not recognised plaintiff’s 2 claim of fraudulent deception. Under Article 59(1) of the FamFG (2), plaintiff 2 also had the right to appeal to the Court of Appeal, as the decision of the Court of First Instance directly affected his legal position, in particular with regard to post-marital maintenance under Article 1318(2)(1) of the BGB. This provision allows maintenance only for the spouse who has been deceived or coerced and thus excludes any claim for plaintiff 2 on the basis of the findings of the Court of First Instance.
The Supreme Court also clarified that the international jurisdiction of the German courts was justified under Article 100(2) of Council Regulation (EU) 2019/1111 (3) in conjunction with Article 1(1)(a) and Article 3(1)(a), of the new Brussels II Regulation (4), as both spouses resided in Germany and the proceedings were initiated before 1 August 2022.
The case was not yet ready for a final decision and required further examination, particularly regarding the application of Afghan law since both parties were Afghan nationals. The Supreme Court pointed out that the conditions for annulment had to be assessed under Afghan law as stipulated by Article 13(1) of the EGBGB (5) and that any application of Afghan law had to be examined for compatibility with German public policy (ordre public) as requested by Article 6 of the EGBGB.
The Supreme Court overturned the decision of the Court of Appeal and referred the case back to the Court of Appeal for further proceedings.
(1) Bürgerliches Gesetzbuch (Civil Code).
(2) 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).
(3) Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).
(4) 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.
(5) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).