BGH; 2022-05-25; XII ZB 404/20
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2022:250522BXIIZB404.20.0
Date: 2022-05-25
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0525(51)_ENG_SUMJURE
JURE summary
JURE summary
A German citizen (hereinafter ‘the plaintiff’) filed on 27th October 2013 a divorce application with the Amtsgericht Hamm (hereinafter ‘the Court of First Instance’) seeking the divorce of his marriage to a Polish citizen (hereinafter ‘the defendant’). Two sons were born during the marriage.
After living first in Germany, the parties to the dispute later moved to Poland, where their sons attended a school in Warsaw. As a manager of the pharmaceutical producer and managing director of its Dutch subsidiary, the plaintiff was also professionally active in the Netherlands, where he had a company flat.
The plaintiff expressed the opinion that his habitual residence had been in Germany since the middle of 2012. The defendant challenged the international jurisdiction of German courts, claiming that the plaintiff’s domicile was both in Poland and the Netherlands until 2013 but not in Germany.
The Court of First Instance, seised under the sixth indent of Article 3(1)(a) of the new Brussels II Regulation (1), expressed the opinion that German courts did not hold the international jurisdiction and dismissed the application, citing its inadmissibility. The international jurisdiction of the German courts was also negated by the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’), which dismissed the plaintiff’s appeal, stating that on 27th April, six months before the divorce application was filed, no habitual residence of the plaintiff could be established in Germany.
The plaintiff pursued his claim further by filing a revision with the Bundesgerichtshof (hereinafter ‘the Supreme Court’), demanding the case to be referred back to the Court of First Instance.
According to the case law of the Court of Justice of the European Union, spouses who live in two or more Member States can only have their habitual residence in one of those Member States. If the spouse is a citizen of a Member State whose court he or she seises, they may file the divorce application after spending six months in the Member State. Otherwise, the applicable period of time is one year.
The Court of Appeal found that the plaintiff had his habitual residence in Germany at least upon filing the divorce application on 27 October 2013. However, it was not clear from the findings of the Court of Appeal whether the plaintiff had his main place of residence in Germany at least six months prior to filing the application. The term ‘habitual residence’ is a vague legal term which leaves space for discretion, and as no previous decisions made by the Court of Justice of the European Union existed, the Supreme Court decided to stay the proceedings and approached the Court of Justice of the European Union for a preliminary ruling.
The Supreme Court requested clarification whether the waiting period of one year (six months) under Article 3(1)(a)(fifth and sixth bullet point) of the new Brussels II Regulation started for the applicant only upon establishing the habitual residence in the Member State where the court seised was located or whether it was sufficient that the applicant only resided in the Member State where the court seised was located and the simple residence developed into his habitual residence within the period up until filing the application.
(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.