EUPillar OLG Koblenz, 18.3.2015

Summary

The parties argued about the amendment of maintenance obligations. The applicant lived with his father in Germany. The mother whose obligations were subject to the dispute lived in Luxembourg. Within the divorce of the applicant’s parents, a Bulgarian court had ruled on the mother’s maintenance obligation. The applicant claimed for a modification of the determined claims before German courts. The court had to examine whether the mother has entered appearance before German courts and which law applied to the case. The court held that the requirements of Art 5 Maintenance Regulation were fulfilled. It was – according to the court – relevant that the mother had not reprimanded the international jurisdiction before the entering of defence in writing that had to be considered as the decisive point of time. The court referred to the CJEU case law according to which the autonomous interpretation of Art 5 Maintenance Regulation did not make it necessary to take into consideration a potential fault by the defendant regarding a delayed reprimand (as it is the case in German procedural law, § 296 (3) ZPO). The court further decided that German law applied to the case pursuant to Art 15 Maintenance Regulation and Art 3 (1) Hague Maintenance Protocol as the applicant had his habitual residence in Germany. The scope of application of the law applicable according to the Hague Maintenance Protocol pursuant to its rule in Art 11 – according to the court – also extended to the question of potential amendments of tiles. The court further stated that the admissibility of the application to amendments of titles did not require that the first state’s law allowed such an amendment. This argumentation was based on the ratio behind Art 8 Maintenance Regulation. The court deduced from this provision that amendments in general were possible according to changes in the law governing the maintenance claims, given that the rule explicitly restricted its scope to the period of time the person claiming maintenance still lives in the country of the title’s origin. The change of the law governing the maintenance obligation according to the court led to a new assessment of the claims under the actually decisive law (German law). The courts were – according to the Court – not bound by the facts which had served as the ground for the first instance court decision. This decision was relevant only with regard to the fact of the general existence of a maintenance obligation and as a reference point concerning the question whether a modification is generally necessary.