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Home > Family > Germany > 2008-05-28 - Federal Court of Justice, n. XII ZR 61/06

2008-05-28 - Federal Court of Justice, n. XII ZR 61/06

Family · Germany · Get

Incompatibility of an Israeli get with German ordre public

Key facts of the case - The parties involved are German of Mosaic religion. They got married in 1979 in Israel and lived in Germany for the next years. Thus their habitual residence was in Germany. Since 1998 the wife has been demanding a divorce. The defendant (husband) argues that a divorce trial is already pending in Israel and that, accordingly, the German court has no jurisdiction in this case. Furthermore, the husband refuses to give a get to his wife (divorce document). The German first court has to examine whether a pending trial exists in Israel. In the case at stake the court has to grant the wife’s demand. The married couple will be divorced by the German court. After the husband refuses to participate with the rabbinical court in Israel and does not give his wife the divorce document (so called get) the marriage will not be divorced at once. The sanctions of the rabbinical court against the husband (to ensure his participation like a travel ban or monetary fines) violate German law and are incompatible with German ordre public according to Article 6 EGBGB. If the marriage cannot be divorced in Israel, it has to be divorced in Germany irrespective of a pending trial in Israel.

Main reasoning of the court - The legal court issue was whether the pending trial in Israel could lead to a decision which would be probably recognized in Germany. In Germany the procedure of divorce is a sovereign act by a state court. In Israel, the Mosaic divorce is performed through a simple divorce document (get) which is classified as a private legal act. Decisions of foreign religious courts like the Israeli ones are recognizable in Germany, as it does in this case. The prerequisite is that the “religious” court is authorized to decide of civil matters by a state authority. In this case such a court simply fulfills the tasks of the worldly legal order. Accordingly, the application of a get (private legal act divorce) in Germany is only possible if the prerequisites of the applicable national divorce law are given.
According to the applicable German law a divorce can only be granted by a state court (Article 17 II EGBGB). The court is aware of the fact that a German court divorce leads to serious problems for the wife. A wife without a get will be still treated as a married woman according to Mosaic Law. Thus she cannot remarry and her children of the first marriage would be a mamzer (a person born from certain forbidden relationships or the descendant of such a person) with less repudiation and rights. This is a century old problem which has its roots in the Mosaic Law and can only be solved by this law.
Furthermore, these problems do not only exist in the German-Israeli legal relationship but also in other cases within Israel between orthodox and reformist movements for example. It would not make sense to accept the priority of an Israeli rabbinical court (concerning pendency) by classifying the decision of a rabbinical court as a judicial divorce, since a German law divorce is also not recognizable in Israel according to Mosaic law. The Israeli court does not recognize a German law divorce based on the reason that the indispensable act of a get based on the husband’s autonomous decision is missing according to Mosaic Law. Thus a get cannot be recognized in Germany according to Article 17 I 1 in conjunction with Article 14 I Nr. 1 EGBGB. The nationality of the parties is relevant for the classification of the general effect of marriage according to Article 17 I 1, 14 I Nr. 1 EGBGB. Both are German. Thus German national divorce law is applicable. The married couple lives separately since 1994. Thus the marriage has to be divorced according to § 1566 II BGB.