Bundesgerichtshof; 2020-07-22; XII ZB 131/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2020:220720BXIIZB131.20.0
Date: 2020-07-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0722(51)_ENG_SUMJURE
JURE summary
JURE summary
The competent administrative authority (hereinafter ‘the plaintiff’) applied for the annulment of a marriage between two Lebanese citizens concluded on 10 September 2001 in Lebanon made between, at that time, a 21-year-old man (hereinafter ‘the defendant’) and, at that time, a 16-year-old woman (hereinafter jointly ‘the defendants’).
The defendants lived in Germany since 2003 and had four children together.
After the defendant expressed its intention not to continue the marriage, the plaintiff applied with the Amtsgericht Tempelhof-Kreuzberg (hereinafter ‘the Court of First Instance’) to annul the marriage due to the minor age of one of the defendants upon the marriage.
The Court of First Instance dismissed the application stating that the possibility to annul a marriage which was entered into prior to the effectiveness of the Gesetz zur Bekämpfung von Kinderehen (1) was subject to the laws applicable prior to then and that under these laws, no reason for the annulment of their marriage existed.
The appeal of the plaintiff lodged with the Kammergericht Berlin (hereinafter ‘the Court of Appeal’) was not successful as no breach of Article 1303(1) BGB (2) could be established.
The revision of the plaintiff filed with the Bundesgerichtshof (hereinafter ‘the Supreme Court’) was found admissible but proved unsuccessful.
The international jurisdiction of German courts followed from Article 1(1)(a) and Article 3(1)(a) first indent of the new Brussels II Regulation (3).
The Court of Appeal was correct to have treated the marriage as effective. Under the Gesetz zur Bekämpfung von Kinderehen, a marriage may not be concluded by minors under the age of 18 without exceptions. This, however, applied solely to marriages concluded in Germany.
The possibility to annul a marriage concluded with a 16-year-old person was subject to Article 1313 ff. of the BGB. The transitional provisions pursuant to Article 229, Article 44(1) and (2) of the EGBGB (4) did not apply to such marriages concluded abroad.
The Supreme Court dismissed the plaintiff’s revision against the decision of the Court of Appeal and instructed the Court of Appeal to dismiss the appeal against the Court of First Instance for being inadmissible.
(1) Gesetz zur Bekämpfung von Kinderehen (Act to Combat Child Marriage).
(2) Bürgerliches Gesetzbuch (German Civil Code).
(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) Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Act to the Civil Code).