Home > Family > Germany > 2008-11-26 - Court of appeal of Koblenz, n. 9 UF 653/06

2008-11-26 - Court of appeal of Koblenz, n. 9 UF 653/06

Family · Germany · Lex fori · Talaq

Possibility for an Iranian citizen to divorce according to foreign rules through German procedure law

Key facts of the case - The parties are Iranian citizens and got married in 1997. In this context they made an agreement, which dealt with the possibility of divorce (marriage contract). They moved later to Germany and got two children. In the year 2006 the husband returned to Iran without paying any maintenance. Now, the wife applies for divorce and child custody. She wishes a talaq (unilateral divorce by husband, also known as repudiation of the wife) or tafwid-i talaq (wife entitled to declare the talaq) as an alternative. The defendant (husband) did not want a divorce under no circumstances and accordingly did not declare the talaq.

Main reasoning of the court - According to the court the claimant (wife) is authorized to declare tafwid-I talaq. In Germany procedural law is strictly separated from substantive law. International jurisdiction of German courts is given by the prior European regulation (EG VO) No. 2201/2003 from 27 November 2003. Thus German Jurisdiction given for divorce procedure has to be applied, under the condition that at least the wife’s habitual residence is in Germany. It follows that German procedural law has to be applied. Furthermore German procedural law concerning child custody has to be applied as well, if the children’s habitual residence is in Germany. This subject has to be separated from substantive law.
According to Article 8 III German-Persian Agreement (Niederlassungsabkommen) Iranian substantive law has to be applied, because both parties are Iranian citizens. According to this Agreement Iranian law has to be applied if one is Iranian citizen but lives in another country. There is no legal claim (§ 1129 Iranian Civil Code, ICC) but a contractual one out of the marriage contract. Therefore the wife is entitled to apply for divorce, when her husband has been refusing to pay maintenance for at least six months according to §§ 1119, 1130 ICC. These requirements are met in this case. The marriage will be divorced by tafwid-I talaq. Further the wife receives the child custody, given the fact that the children’s father lives abroad.

Comment - German courts decide on the principle of lex fori to the German procedural law. Even under application of German substantive law the marriage would have been divorced. Thus there is no violation of public policy according to Article 6 EGBGB.