EUPillar OLG Celle, 14.10.2008

Summary

The court had to decide whether the proceeding pending before German courts had to be stayed pursuant to Art 27 (1) Brussels I. The spouses got divorced before a British court under British law. After that (in 2005) the plaintiff brought an action before the British courts regarding the regulation of the divorce conseqences (ancillary relief). In 2006, she claimed maintenance before German courts. In 2008, the spouses agreed on the entire financial consequences before the British courts. With regard to the issue of lis alibi pendens, the court had to assess whether the Brussels I Regulation applied to the case. 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. The court stated that the scope of application of Brussels I was given as the British and the German proceeding concerned the same cause of action. It was relevant whether the proceedings in England concerned maintenance claims. The court discussed the possibility of the judge to regulate the financial consequences of divorce under the Matrimonial Causes Act thoroughly. It stated that in the present case the claims that were granted to the wife served to secure the maintenance of the spouse, eg the future standard of living. The wife had applied for orders on the financial maintenance which particularly were to be realised in periodical payments and in a secured provision order. The fact that the application further extended to the payment of a lump sum did not speak against the classification as maintenance claims. The court in this regard referred to the CJEU judgment in van den Boogard. Therefore, the court held that both proceedings concerned maintenance claims according to a continental European understanding. The court summarised that the action brought by the plaintiff has been inadmissible from the beginning.