BGH; 2023-04-26; XII ZB 187/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2023:260423BXIIZB187.20.0
Date: 2023-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0426(51)_ENG_SUMJURE
JURE summary
JURE summary
A German-Italian spouse (hereinafter ‘the defendant’) and an Italian spouse married in Berlin and later divorced by mutual consent in Italy. The Italian Registry Office issued a certificate confirming the divorce under Article 39 of the new Brussels II Regulation (1).
The defendant requested the Registry Office of Berlin (hereinafter ‘plaintiff 1’) to register the divorce in the German marriage register. Plaintiff 1 referred the matter to the Court of First Instance via the Registry Office Supervisor (hereinafter ‘plaintiff 2’) due to doubts as to whether the notarisation first requires recognition in accordance with Article 107 of the FamFG (2).
The Court of First Instance instructed that the divorce could only be registered after recognition by the Senatsverwaltung für Justiz, Verbraucherschutz und Antidiskriminierung Senate (hereinafter ‘SJVA’) pursuant to Article 107(1)(1) of the FamFG.
The SJVA rejected the subsequent application for recognition on the grounds that it was not a decision requiring recognition. The defendant appealed against this decision, but no judgment has yet been rendered on the matter.
The present decision was rendered on a successful appeal by the defendant against the decision of the Court of First instance, which was amended to remove the SJVA recognition requirement.
Plaintiff 2 is appealing this latest decision before the Bundesgerichtshof (hereinafter ‘the Supreme Court’) seeking restoration of the first instance judgement.
The Supreme Court stayed the proceeding and referred to the Court of Justice of the European Union (CJEU) for the interpretation of Article 1(1)(a), Article 2(4), Article 21(1), and Article 46 of the new Brussels II Regulation. The CJEU in the preliminary ruling C-646/20 (3) decided that the dissolution of marriage based on Article 12 of Italian DL 132/2014 (4) constitutes a judgment of divorce within the meaning of the new Brussels II Regulation.
Similarly, the appellate decision found that divorce based on Article 12(1) of Italian DL 132/2014 is a decision within the meaning of Article 21(1) of the new Brussels II Regulation because it takes the place of a court decision and has a constitutive effect.
In Case C-372/16 (5), the CJEU found that private divorces are not judgments within the meaning of Rome III Regulation (6) and the new Brussels II Regulation, as such judgments only include divorces that are pronounced either by a state court or by a public authority or under its control.
However, the divorce under Article 12 of Italian DL 132/2014 falls within this scope, since the involvement of a civil registrar is mandatory in such proceedings as he ensures that legal conditions for the divorce are met. Therefore, these divorces don’t require recognition under the FamFG, nor under the new Brussels II Regulation. The Supreme Court agreed with these findings.
As per Article 97(1)(2) of the FamFG, the Supreme Court reminds that Member States of the European Union are exempt from the recognition procedures for foreign decisions that are generally required, thus streamlining the process for divorce registration in Germany. In the presence of a decision under Article 21(1) of the new Brussels II Regulation, it will be directly recognised, and the submission of a certificate in accordance with Article 39 of the new Brussels II Regulation is sufficient for the continuation of the marriage register.
(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.
(2) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Law on procedure in family matters and in matters of voluntary jurisdiction).
(3) Judgment of the Court of Justice of 15 November 2022, Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, C-646/20, ECLI:EU:C:2022:879.
(4) Decreto-Legge di 12 settembre 2014, n. 132 (Decree-Law of 12 September 2014, n. 132).
(5) Judgment of the Court of Justice of 20 December 2017, Soha Sahyouni v Raja Mamisch, C-372/16, ECLI:EU:C:2017:988.
(6) Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.