OLG Stuttgart; 2018-04-26; 17 UF 108/17
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2018:0426.17UF108.17.00
Date: 2018-04-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0426(51)_ENG_SUMJURE
JURE summary
JURE summary
The legal case dealt with by the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) concerns the court holding jurisdiction in proceedings regarding divorce proceedings under French law and the previous reconciliation proceedings.
The respective spouses were married on 5 January 2007 by a registrar of the registry office in S. The plaintiff, at first being a citizen of Moldavia, acquired German citizenship in the meantime, the defendant was a German citizen. The defendant applied on 18 August 2014 with the Tribunal de Grande Instance in T., France, through his legal representative in the proceedings for the marriage to be divorced. Firstly, the plaintiff did not object the lack of local and international jurisdiction in the proceedings.
The Tribunal de Grande Instance stated in its resolution from 17 October 2014 that the French courts had jurisdiction, referring to the new Brussels II Regulation (1). On 28 May 2015, the plaintiff filed for a divorce with the Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’) through its legal representative.
When giving reasoning to its resolution, the Court of First Instance stated that the divorce application of the plaintiff was to be dismissed as inadmissible on the grounds of the pendency of the dispute with another court. The plaintiff lodged a complaint against the resolution of the Court of First Instance with the Court of Appeal.
Articles 19(1) and (3) of the new Brussels II Regulation stipulates that where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
Due to the fact that the divorce proceedings before the Court if First Instance were initiated only in May 2015, the Court if First Instance is the ‘court second seised’ under Article 19(1) new Brussels II Regulation. The previous reconciliation proceedings and the following divorce proceedings under French law are to be considered as single proceedings.
The Court of Appeal decided to dismiss the objection of the plaintiff against the resolution of the Court of First Instance.
(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 1347/2000.347/2000.