OLG Stuttgart; 2016-05-12; 17 WF 239/15
Decision by national courts in the field of European Union law — ECLI:DE:OLGSTUT:2016:0512.17WF239.15.0A
Date: 2016-05-12
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82016DE0512(51)_ENG_SUMJURE
JURE summary
JURE summary
This case dealt with by the Oberlandesgericht Stuttgart (hereinafter ‘the Court of Appeal’) concerned legal aid within divorce proceedings. The subject-matter of the case was a dispute between the defendant living in Germany and a citizen of Moldavia (hereinafter ‘the plaintiff’).
The parties to the dispute married on 5 January 2007. On 13 May 2014, the parties separated when the defendant moved out of their marital home in Toulouse, France. Subsequently, the plaintiff also moved out of the flat and had lived in Stuttgart since then.
The plaintiff applied for legal aid with the Amtsgericht Stuttgart (hereinafter ‘the Court of First Instance’) relating to the divorce application to terminate the marriage concluded on 5 January 2007. The defendant opposed the application for legal aid claiming that he filed a divorce application with the Tribunal de Grande Instance in Toulouse on 18 August 2014 and that divorce proceedings were pendant there. The Court of First Instance resolved to dismiss the legal aid application. The plaintiff lodged an immediate appeal against this decision.
The international jurisdiction of the German courts in marital matters is subject to the new Brussels II Regulation (1). Upon receiving a divorce application, the respective German court must examine first whether proceedings under Article 19(1) of the new Brussels II Regulation with an identical subject-matter are pendent in a court of a different Member State. If this is the case, under Article 16 of the new Brussels II Regulation it is decisive which court had been seised first.
The future dealings with the later application depend on the result of the examination conducted by the court first seised. The later seised court may not anticipate this outcome, as it is only the court first seised that is entitled to carry out the examination.
The Court of Appeal was of the opinion that where intended divorce proceedings are to be initially stayed under Article 19(1) of the new Brussels II Regulation until the international jurisdiction of a court of a Member State first seised is clarified, this fact should not result in the refusal of legal aid on the grounds of a frivolous action.
The Court of Appeal decided to modify the decision of the Court of First Instance and gave its consent with legal aid for the defendant within the proceedings in the first instance and assigned her an attorney.
(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.