Home > Family > Germany > 2008-12-18 - Court of appeal of Düsseldorf, n. 5 U 88/08

2008-12-18 - Court of appeal of Düsseldorf, n. 5 U 88/08

Family · Germany · Divorce

Applicability of German national maintenance law (Art 18 I EGBGB) to a promise of donation by the father in law in case of divorce

Key facts of the case - The claimant is the former daughter in law of the defendant. She was married with the defendant’s son until 2006. In 2001, the defendant made an agreement with the claimant’s parents in Turkey.

Main reasoning of the court - The defendant has to make the payment to the claimant. The defendant’s habitual residence is in Germany and he is German. The agreement can be qualified as a maintenance liability of the father in law according to Article 18 I EGBGB / Article 4 Hague Convention on the international recovery of child support and other forms of family maintenance. Thus German law is applicable.
The agreement does not violate the law according to §§ 134, 138 BGB (Prohibition of entering into illegal obligations and violation of morality). The agreement was made in a legally valid manner. As to qualification, § 1585c BGB is not applicable since the parties are not married any more. The agreement is not an acknowledgment of debt according to §§ 780, 781 BGB (Promise to fulfill an obligation and acknowledgment of a debt) as well. The content of that agreement was a promise of donation by the defendant in case of a divorce between his son and his daughter in law. Thus he has to pay 30.000 € to his daughter in law. The defendant’s donation (gift contract) requires notarization to be formally valid under German law. This requirement is missing in this case.
But according to Article 11 I EGBGB (now Article 11 Rome I regulation) a legal act is formally valid if it satisfies the formal requirements of the law which is applicable to the legal relationship forming the subject matter or the law of the country in which the act is performed. Thus it is also legal if it meets the formal requirements of the country, where the agreement was made (in this case Turkey). A donation does not require notarization according to § 238 TCC (Turkish Civil Code). It must only be in written form, which is given in this case. Thus defendant has to make the payment to the claimant.

Comment - This decision reflects specific immigrant issues, since they spent a lot of money to cover the costs which occur when somebody resettles.