OLG Hamm; 2017-01-27; 3 UF 264/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2017:0127.3UF264.15.00
Date: 2017-01-27
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82017DE0127(51)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen (hereinafter the ‘plaintiff’), the husband of an Austrian citizen (hereinafter the ‘defendant’), applied for a divorce from the defendant.
Referring to the prenuptial agreement, the plaintiff claimed that any settlement claims and claims regarding the post-marital spouse support and the settlement of gains acquired during the marriage were to be excluded.
Even though the defendant agreed with the divorce in the first instance, she applied for a pension rights adjustment and filed applications regarding the settlement of gains acquired during the marriage and the post-marital spouse support. The defendant claimed that the prenuptial agreement was null and void due to the violation of moral principles, not being able to withstand any examination of its content.
The Amtsgericht Essen – Borbeck (hereinafter ‘the Court of First Instance’) divorced the marriage and dismissed the defendant’s applications for the settlement of gains acquired during the marriage and the post-marital spouse support. The prenuptial agreement did not violate moral principles as the defendant failed to prove that the agreement would have been made under pressure, due to her lack of experience, reduced judgement capacity or a significant weakness of will.
The appeal lodged by the defendant with the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) was partially successful.
The international jurisdiction of German courts followed in this case from Article 3(1)(a) of the new Brussels II Regulation (1).
The Court of First Instance had not acted correctly by not having carried out the pension rights adjustment. Despite the provisions the parties made in the prenuptial agreement to exclude any pension rights adjustment between them in case of divorce, it was not possible to exclude it fully. If the court finds after a substantial check of the property situation that one of the spouses is evidently and unreasonably disadvantaged, the court is obliged to make corrections. This was the case in this dispute.
On the contrary, the application regarding the payment of post-marital spouse support was dismissed. Even though the post-marital spouse support belonged to the very substance of divorce settlement law, this possibility had been excluded by the prenuptial agreement completely. The same applied to the settlement of gains acquired during the marriage.
Based on the appeal of the defendant, the Court of Appeal partially changed the decision of the Court of First Instance and ordered a re-calculation regarding the pension rights adjustment between the parties.
(1) 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.