Home > Family > Germany > 2008-12-19 - Court of appeal of Düsseldorf, n. 3 Wx 51/08

2008-12-19 - Court of appeal of Düsseldorf, n. 3 Wx 51/08

Family · Germany · Inheritance · Ordre public

Combined application of Iranian and German law to inheritance of an Iranian citizen

Key facts of the case - The deceased was Iranian Muslim while his wife is a German Christian. On the one hand the deceased person’s brothers and sisters and his wife on the other hand apply for a certificate of inheritance. The court must examine the proportional share to the inheritance of both parties.

Main reasoning of the court - Without any testament made by the deceased, legal succession is enforceable. Since the deceased was an Iranian, Iranian law has to be applied according to the agreement between the German Empire and the Empire of Persia signed in 1929 (Niederlassungsabkommen). Therefore the wife would get only a quarter of the estate. If the deceased person were a woman, the surviving spouse would get half of the share. This situation needs a correction, because foreign law can be applied according to Article 6 EGBGB (ordre public), only if its application gives result compatible with German law. In this case Iranian law violates the fundamental right of equality of sexes (Article 3 II 1 GG) in Germany. It should be underlined that according to German law the wife would even get three-quarters of inheritance (§ 1371 BGB). Applying this law would completely ignore the Iranian law. Thus the German law has to be applied only partially. The discrimination between woman and man has to be put to an end without ignoring the Iranian law as such. It follows that the wife will also get half of inheritance.

Comment - German public policy codified in Article 6 EGBGB would only forbid the recognition of foreign law, if it leads to an incompatible situation with German law. The conflict of law in this case is difficult to solve. A foreign law discrimination of sexes is incompatible with German law according to Article 6 EGBGB combined with Article 3 II 1 GG. Accordingly, the application of foreign law according to Article 8 III 2 German-Persian Agreement has to be corrected by Article 6 EGBGB.