Московский журнал международного права (Apr 2023)
Recognition of foreign decrees of divorce in the German legal system
Abstract
INTRODUCTION. The object of the research consists in the specific procedure of the recognition of foreign decrees of divorce which exists in the German law. The actuality of the object of the research is confirmed by keeping of this procedure during many decades, as well as nowadays, in regard of the recent reform of the law of the European Union about the mutual recognition of decisions in matrimonial matters.MATERIALS AND METHODS. The article is based on the Act of the Federal Republic of Germany of 2009 on Proceedings in Family Matters and on the Family Law Reform Act of the Federal Republic of Germany of 1961, as well as both on the case law to the application of these Acts and on the German legal doctrine which analyzes it. The first Act is and the last Act was before the legal basis of that procedure of recognition. To achieve the results were applied the general and specific scientific methods, in particular the method of comparative legal study.RESEARCH RESULTS. The research result consists in the presentation of the analyzed procedure of recognition of foreign decrees of divorce in German law. It is considered that this procedure is constructed after the model of the recognition and enforcement of foreign judgements. Until the foreign decree of divorce is not recognized in the framework of this procedure, this decree is completely ignored by the German authorities, that means the spouses divorced by the foreign court remain spouses from the point of view of German law with all the ensuing consequences in the field of property and non-property rights both between each other and in the relations with the thirds parties. This procedure is realized by the regional administration of justice whose decision may be a subject matter of scrutiny by the appellate court. Although the delegation of this power to the executive raises by some authors the doubts about its constitutionality, the case law proceeds from the legitimacy of this competence.DISCUSSION AND CONCLUSIONS. The German concept of the obligatory preliminary recognition of foreign decrees of divorce is the equal alternative to the concept of automatic recognition of foreign judgements ruled on the status and legal capacity which exists in Russian law.
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