EUPillar AG Seligenstadt, 17.1.2008

Summary

The applicant had the German and Brazilian citizenship and the defendant had the Italian and Brazilian citizenship. They got married in Canada. The court was charged with the wife’s application for divorce. After their marriage they lived in several countries. Most recently they lived in the Netherlands, where the defendant still lived when the wife applied for the divorce. The wife claimed to have her habitual residence in Germany. The court stated that German courts had the international jurisdiction under Art 3 (1) (a) 5th indent Brussels IIa as the wife had her habitual residence in Germany and had lived there for at least one year before the application. The defendant had initiated a separation proceeding in Brazil before. The court first stated with regard to the problem of lis pendens under national law (§ 261 III No. 1 ZPO) that the proceeding regarding separation differs from the proceeding on divorce. This fact excluded – according to the court – the danger of irreconcilable judgments. It further held that European law treats separation and divorce equally, Art. 19 (1) Brussels IIa. Art 19 (2) did not apply as it solely concerned proceedings in EU Member States. Art 19 (2) Brussels IIa could not lead to an extension of the German understanding of the subject matter.