Brandenburgisches Oberlandesgericht; 2021-09-13; 13 UF 89/18
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2021:0913.13UF89.18.00
Date: 2021-09-13
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: Germany

82021DE0913(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerned a dispute between a public institution (hereinafter the ‘plaintiff’) and an ex-husband living in Norway (hereinafter the ‘defendant’).
The plaintiff pursued a claim against the defendant based on an entitlement for spousal maintenance that had passed on the plaintiff. The plaintiff paid the wife of the defendant, who lived separately and got divorced in 2017, allowances according to Book 2 of the German Social Code during the relevant period to ensure her maintenance. By a letter from December 2016, the plaintiff informed the defendant about the provision of allowances to his wife and the passage of the claim, and requested that the defendant provide information regarding his income and property situation.
The plaintiff filed an application with the Amtsgericht Zehdenick (hereinafter ‘the Court of First Instance’), demanding that the defendant pay the outstanding maintenance for the relevant period based on the passage of claims in connection with the provision of allowances for ensuring the maintenance of the wife.
The Court of First Instance rejected the application, stating that the plaintiff failed to sufficiently prove the financial need on the part of the wife.
The plaintiff pursued its claim further by appealing with the Brandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’), arguing that the wife had no opportunity to start full-time employment.
According to the Court of Appeal, the international jurisdiction of the German courts resulted from Article 24(1) of the new Lugano Convention (1). The defendant entered an appearance, thus establishing the international jurisdiction of the German courts.
The applicable law was the law of Germany. According to Article 15 of Council Regulation (EC) No 4/2009 (2), the applicable law is subject to the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, which was also adopted by Norway and is universally applicable.
Under Article 1361 of the BGB (3), the wife living in Germany was entitled to receive a maintenance appropriate to the living, income and property situation of the spouses. Therefore, the plaintiff was, under Article 33(1)(1) of the SGB II (4), entitled to receive the spousal maintenance for the relevant period based on a passed right.
When assessing the spousal maintenance, the court took into consideration the fact that the wife lived in Germany and the defendant in Norway not by adjusting the income of one party according to the purchase power but by making a weighted division of the total amount at disposal with respect to the purchasing power.
Based on the appeal of the plaintiff, the Court of Appeal changed the decision of the Court of First Instance and ordered the plaintiff to pay the requested sum.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
(3) Bürgerliches Gesetzbuch (Code of Civil Procedure).
(4) Sozialgesetzbuch (SGB) Zweites Buch (II) (Book 2 of the German Social Code).