Oberster Gerichtshof, Urteil vom 24/03/2009 4 Ob 20/09h
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2009:RS0124601
Date: 2009-03-24
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82009AT0324(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff is an Austrian citizen, the defendant is a German citizen. The parties divorced in Austria under German law. The last common residence was located in Germany. The plaintiff lodged an action against the defendant before the Bezirksgericht of Innere Stadt Vienna (AT) for payment of monthly maintenance. The court ordered the defendant to pay maintenance, whereupon he filed an appeal with the Landesgericht for civil matters in Vienna. The court lifted the judgment and remanded the case to the court of first instance. Thereupon, the defendant appealed to the OGH (AT).
The OGH does not sustain the appeal, but leaves it open and remands the matter back to the court of first instance because, inter alia, the court of first instance partially applied the wrong law. The claims to maintenance after divorce are governed by German law, not Austrian. The Austrian rules of private international law defer in this case to the German rules. The German rules apply the law that was applied to issue the divorce, so long as the divorce was decreed or recognised in Germany. The recognition of the divorce in Germany is therefore a threshold question. In this case, the Austrian ruling over the divorce pursuant to Article 21(1) Brussels II bis Regulation is, pursuant to the principle of automatic recognition, to be recognised in Germany. There are no obstacles to recognition as provided by Article 22 Brussles II bis Regulation. The post-marital maintenance is therefore governed by German law.