EUPillar BGH, 12.8.2009

Summary

The parties argued about the declaration of enforceability of a judgment given by the High Court of Justice in London, England. The judgment ruled on the financial consequences of the divorce that had taken place in 2004. The decision contained orders for payments of a lump sum as well as regular annual payments to the mother and the children. The applicant contested the declaration of enforceability of this judgment by German courts. The Federal Supreme Court had to examine whether the scope of application of the Brussels I Regulation was opened. The Court particularly had to assess whether the decision concerned matrimonial matters that pursuant to Art 1 (2) (a) Brussels I (old version) were excluded from the Regulation’s scope of application. It summarised that under English law the judge could perform a clean break approach which in general intended an equal distribution of the assets between the spouses. This clean break may generally also be paid within a lump sum. The Court referred to the fact that the High Court’s decision contained lump sum payments as well as regular payments. It stated that in view of these circumstances, it was necessary to ask which regulation concerned maintenance aspects and whether the decision concerned matrimonial aspects, too. In order to distinguish, the Court considered the decision’s purpose decisive, namely whether the adjudged supply served to the distribution of goods or to secure the maintenance of the spouse, eg the future standard of living. The High Court had granted a lump sum according to the applicant’s application pursuant to Secs. 23 and 24 Matrimonial Causes Act. This according to the Court spoke in favour of a final distribution of assets that was made additionally to the ruling on maintenance aspects. Even if the home ownership granted in the decision also served as maintenance (in view of the lack of rental costs), the spouse received the asset itself, too, which exceeded the need for maintenance. This - according to the Court - further spoke in favour of a classification as regulation on matrimonial aspects. Moreover, the grounds of the High Court’s judgment – according to the BGH – also suggested this understanding as the High Court clearly had separated the need for maintenance calculated according to the defendant’s income on the one hand and the compensation of the assets on the other. The court therefore stated that the regular payments could be declared enforceable. The lump sum however concerned matrimonial questions. The classification of the lump sum payment in this case directly concerns the scope of application of a European Regulation. It therefore seems to have been necessary to request a preliminary ruling on this issue.