Oberster Gerichtshof; 2020-10-21; 9 Ob 32/20a
Decision by national courts in the field of European Union law — ECLI:AT:OGH0002:2020:0090OB00032.20A.1021.000
Date: 2020-10-21
Subject matter: Judicial cooperation in civil matters
Origin: Austria

82020AT1021(51)_ENG_SUMJURE
JURE summary
JURE summary
The son (hereinafter ‘the plaintiff’) of a deceased mother filed an application by which he sought the declaration that the divorce settlement concluded between his mother and his father (hereinafter ‘the defendant’), among other things providing for the transfer of ownership to an apartment in Venice to the father, was ineffective and that the ownership to the apartment belonged to the plaintiff as the universal legal successor of his mother.
Within the consensual divorce proceedings, their mother was represented by a representative. According to the plaintiff, this fact violated the very personal right of the mother to conclude the separation agreement herself, making the separation agreement invalid.
The Bezirksgericht Klagenfurt (hereinafter ‘the Court of First Instance’) rejected the action citing its own lack of international jurisdiction. The claims made by the plaintiff were a matter of matrimonial property regime and fell within the scope of the Regulation (EU) 2016/1103 (1) but no preconditions for the jurisdiction stated therein were fulfilled.
The Landesgericht Klagenfurt (hereinafter ‘the Court of Appeal’) did not uphold the appeal filed by the plaintiff. The Court of Appeal confirmed the opinion of the Court of First Instance excluding the applicability of the Brussels I Regulation (recast) (2).
The revision filed with the Oberstes Gerichtshof (hereinafter ‘the Supreme Court’) was found admissible but not justified.
The Court of First Instance and the Court of Appeal were correct to examine and deny the international jurisdiction under the Regulation (EU) 2016/1103.
Upon filing the action, the divorce proceedings had no longer been pendent and the jurisdiction under Article 5 of the Regulation (EU) 2016/1103 on which the plaintiff relied did not apply. This provision stipulates that where a court of a Member State is seised to rule on an application for divorce pursuant to Regulation (EC) No 2201/2003 (3), the courts of that State shall have jurisdiction to rule on matters of the matrimonial property regime arising in connection with that application. However, this principle applies only until the divorce proceedings have been terminated with a final effect. The marriage between the mother and the father of the plaintiff had been divorced by the Court of First Instance a long time before the plaintiff filed his application.
The decision on the divorce had been served to the mother’s representative, and after no remedies had been filed, the decision became finally effective (4).
The Supreme Court dismissed the revision of the plaintiff.
(1) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.
(2) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(3) 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.
(4) ECLI:AT:OGH0002:2019:0010OB00208.18X.0403.000.