One consequence of the Europeanisation of private international law is the need to examine and characterise certain phenomena, which have already been classified under national law, by reference to new EU Regulations. Family law, in particular, raises the question as to whether existing characterisation under national private international law regimes can be maintained. The German Federal Court (Bundesgerichtshof, BGH) had the opportunity to consider this issue in a judgment dated 18 March 2020 (BGH XII ZB 380/19).
A mahr is a marriage gift, or dower, under Islamic law promised from the groom to the bride, which usually becomes due upon divorce. It has different functions, such as to secure the financial situation of the bride upon marriage, as well as to protect her against an arbitrary divorce. Because the institution is unknown in Western legal systems, and because the specific legal arrangements of a mahr may differ between jurisdictions, its characterisation raises difficult problems.
In 2006, a Libyan national married a German national who had converted to Islam. At an Islamic ceremony in Germany, they signed a document stating – in German –: “dower coverage: Hajj”. A Hajj is an Islamic pilgrimage to the Kaaba in Mecca. In the following year, the couple also celebrated a civil marriage in Germany, the country of their common domicile.
In 2016, the couple divorced – again in Germany, where they were still living. The former wife then asked for the Hajj she had been promised at the Islamic ceremony. As the former husband declined, she sued him in a German court.
The case ended up before the German Federal Court, which ruled that the promise should be characterised as a “general effect of marriage” and that, therefore, the conflicts rule of Article 14 of the Introductory Law to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) applied. According to this provision, German law governed the mahr, given the spouses’ common domicile in Germany.
The ruling is therefore consistent with previous case law of the Federal Court, which decided that a similar gift under Iranian law (a mehir) is to be characterised as a “general effect of marriage” within the meaning of Article 14 EGBGB (BGH NJW 2010, 1528). The present case, however, warrants special attention, because the Federal Court considered a number of alternative characterisations. Throughout the comprehensive judgment, the Court made some interesting comments about important acts of European Private International Law.
The first characterisation that the Federal Court considered was contractual promise. As the mahr agreement was made before the Rome I Regulation (Article 28 Rome I) came into force and no law had been chosen, Article 28 EGBGBG, which corresponds to Art 4 of the European Convention on the law applicable to contractual obligations 1980 (ECC), would have applied. The Court highlighted that, as the party obliged to characteristic performance had his habitual residence in Germany, German law would had applied if Art 28 EGBGB governed the case. The result would therefore have been the same as that under Article 14 EGBGB, so that the Federal Court did not need to decide whether this characterisation was correct.
Second, the Federal Court analysed the mahr as matrimonial property and drew attention to the scholarly debate as to whether a dower fall within the Regulation on Matrimonial Property Regimes. Yet, it did not have to decide this question, as the Regulation applies only to spouses who marry, or who specify the law applicable to the matrimonial property regime, after 29 January 2019 (Art 69(3) Regulation on Matrimonial Property Regimes). Article 15 EGBGB, which would have therefore applied, uses the same connecting factors as Art 14 EGBGB, save for the possibility of a choice of law by the parties. As the parties had not chosen the applicable law of the promise, the result would again have been the same as that under Article 14 EGBGB: German law applies.
Third, the Federal Court considered the mahr being characterised as a maintenance obligation under the Maintenance Regulation. The Court cited a CJEU decision for the proposition that a provision is ‘maintenance’ if it is designed to enable one spouse to provide for himself or herself, or if the needs and resources of each of the spouses are taken into consideration when determining its amount (Case C-220/95, Boogaard, margin no 22). While the Court opined that this would rarely be the case for a mahr, it considered that it did not need to decide the question. Since the spouse potentially entitled to the dower was domiciled in Germany, characterisation of the mahr as a maintenance claim would have resulted in the application of German law.
Consequence of Divorce?
Finally, the Federal Court also considered the obligation to deliver the mahr as a legal consequence of divorce. Article 17 EGBGB submits the property effects of divorce to the law applicable under the Rome III Regulation. Again, the Federal Court ducked the question of whether this characterisation is correct. It instead relied on the fact that, because of the common domicile of the parties, German law would be applicable according to Article 8(1)(a) Rome III.
Ultimately, this ruling may seem much ado about nothing. However, it serves as a reminder of the complex legal problems a mahr may create under European Private International Law, and provides a glimpse of the issues that the CJEU will have to deal with in the event of a request for a preliminary ruling, which will be inevitable should the precise characterisation require determination in a specific case. One only has to tweak the facts of the case slightly, for instance, by assuming that one of the spouses is domiciled abroad, to see the uncertainty about the characterisation breaking out into the open. The simple fact that the Federal Court examined four alternative characterisations is testimony to the difficulties, as well as the fascinating and complex challenges that legal institutions unfamiliar to us pose, not only for national, but also for European international private law.