Home > Family > Germany > 2008-11-03 - Higher Regional Court of Stuttgart, n. 17 UF 155/08

2008-11-03 - Higher Regional Court of Stuttgart, n. 17 UF 155/08

Family · Germany · Divorce · Dowry · Mahr

Except for a consensual divorce initiated by the wife, the claimant achieves the mahr (dowry) to the full extent

Key facts of the case - The claimant (Iranian citizen) demands her mahr (dowry) from the defendant (her husband), which is based on the marriage contract. A mahr is the amount of money the bride gets in case of talaq (repudiation by the husband). In addition there was a contract clause regulating requirements for a divorce request by the wife (khul`). The husband was sentenced to give his wife 214 gold coins in the trial court. Now the husband appeals against this judgment. He claims that his wife forfeited her claim, because she requested divorce. He argues that this is a case of khul` (to end a marriage under the terms of Islamic law) and there is no contractual claim of mahr anymore. In general a talaq leads to an entitlement of mahr. In the case of khul` she can’t demand her mahr.

Main reasoning of the court - The husband’s appeal was dismissed. The decision of the inferior court is correct. An Islamic mahr has to – if it is not already paid in the context of the marriage – be paid in case of divorce (talaq).
After both parties were Iranian citizens by the time of marriage, Iranian law has to be applied according to Article 14 EGBGB. German public policy (ordre public) codified in Article 6 EGBGB would only forbid the recognition of Iranian law, if this result led to an incompatible situation with German law. In this current case the recognition is compatible.
According to Article1130 Iranian civil code (ICC) the wife is able to apply for divorce, if she can prove her severe misery. In connection with the marriage contract (Article 1119 ICC) she was able to represent her husband and apply for divorce after the behaviour of her husband reaches an intolerable level. So she did not forfeit the entitlement by requesting divorce (khul`). She still has got the contractual claim and will get her mahr.

Comment - See the decision: Federal Court of Justice of 9 December 2009.