A Syrian couple filed for divorce before German courts whose jurisdiction was established under Arts. 1(1)(a), 2(1)(a) of the Brussels II-Regulation since the spouses had their habitual residence in Germany at that time. An important incidental question (Vorfrage) was whether there was a valid marriage under the applicable Syrian law at all.
More interestingly, however, appears to be the court’s subsequent reasoning as regards the possibilities to dissolve the marriage in case it had been formed validly. German private international law referred this question to the law of the spouses’ common nationality, i.e. Syrian law, whose internal conflicts regime pointed to the religious law of each of the spouses.According to the pertinent provisions of the applicable canon law it was likely that the marriage could not be dissolved at all.The BGH held that such a result would manifestly be contrary to German public policy (ordre public). In doing so, the court explicitly overturned its former leading cases which dated from the 1960s and still approved of the impossibility of getting an divorce under an applicable foreign law.
In his thoroughly motivated judgment the BGH explains that the ordre public is by no means a static and absolute rule but rather has to be interpreted in the light of the changing social and legal environment. In his reasoning, the BGH particularly accounted for the legal developments in foreign countries and pointed to the fact that the German ordre public is becoming more and more European rather than a purely domestic yardstick.
Bundesgerichtshof (BGH – Federal Court 26.9.2006 11.10.2006, case XII ZR 79/04 (available at : www.bundesgerichtshof.de ; published in : BGHZ 169, 240 ; FamRZ 2007, 109 ; NJW-RR 2007, 145)