Even in international law, only one court is competent when called upon
Divorces of Muslim marriages is no longer a rarity in our open and international society. In the US, citizens can also be married as married couples under Islamic law. If this marriage took place abroad, the marriage is generally also valid in the US if there are no obstacles such as being a minor. It is more difficult in the case of the divorce of such an international marriage. A Lebanese couple who were about to divorce had to learn that a divorce cannot be pursued under Muslim law in their old home country and under law at the same time.
Judgment of the Federal Court of Justice on the divorce of Muslim marriages
Regarding the case, which was decided by the Higher Regional Court, judgment of 06.01.2017 – 3 UF 106/16) – in January 2021:
A young married couple had already faced a Sunni Sharia six years ago and before entering in Lebanon -Court married. In 2015, the wife applied to a Lebanese court for a divorce because the husband was at fault – a ground for divorce that no longer exists in the US since the principle of disruption came into existence. In addition, in these proceedings she demanded the payment of the so-called “evening donation” provided for in such a case. About six months later, the wife also applied for a divorce lawyer in the US before the responsible family court.
The California court granted the divorce the following year without considering the pending proceedings in Lebanon. The husband appealed against this.
Claim only in one court at a time
The case was subsequently heard before the court. This overturned the first-instance decision regarding divorce and pension equalization and referred the case back to the family court. In general, it is possible to divorce such an international, Muslim marriage in the US. However, it also applies here that there should be no double. What does that mean? A case like this divorce can only be decided in one court at a time.
For example, the wife could sue for a possible claim to the “evening gift” in Lebanon. However, possible follow-up proceedings for the divorces under the US law can only be carried out once the proceedings in Lebanon have been completed. The family court must now wait for this decision.
You can find out what you should think about before the divorce in our separation guide.
You can find more information on the special features of divorces in international marriages in the article on special cases of divorce.
Exclude Continuation of Married Name after Divorces
After a divorces, the ex-spouses can go back to their maiden names or names from a previous marriage. But you don’t have to. Can a marriage contract stipulate that a partner who has adopted the married name gives it up again in the event of a divorce? Yes, the Federal Court of Justice decided this.
In the present case, a couple had concluded a marriage contract at the time of the marriage. Among other things, it stipulated that the woman’s surname should become her married name because she ran a well-known family business under that name. At the same time, it was agreed that in the event of a divorce, the husband would either revert to his old surname or choose another legally permissible option. But he shouldn’t continue to use the woman’s well-known name.
When they divorced after a few years, the husband wanted to continue using his wife’s name after all. The wife brought an action against this, citing the marriage contract.
The husband appealed against the decision of the lower court (district court), because he considered the regulation in the marriage contract to be immoral. In its judgment of February 6th, 2008 – XII ZR 185/05 – the Federal Court of Justice ruled in the last instance in favor of the ex-wife.
Name change after divorces
In general, a spouse may continue the married name after a divorces. This regulates § 1355 Abs. 5 BGB. “The widowed or divorced spouse retains the married name. By making a declaration to the registry office, he can reassume his maiden name or the name he used before the married name was determined, or precede or add his maiden name or the name used at the time the married name was determined.”
The special feature of this case, however, is that you can actually waive this right in advance by means of a marriage contract in the event of a potential divorce. The BGH explained that the continuation of the married name alone is not “part of the essence of the marriage” and that therefore the renunciation of the continuation is not immoral. This makes it possible and legal to agree on a return to the previous name in the marriage contract as a precautionary measure in the event of a divorce.
The case would have to be assessed differently if a fee for the name change were agreed in the contract. In that case, there is a high probability that an immoral agreement would have to be assumed.
Change Joint Lease after Divorce
Change rental agreement after divorce: The ex-partner is against it
In many marriages it is common to sign the rental contract for the shared living space or a house together. This is also repeatedly requested by most landlords or is at least desirable. In the event of a separation and thus already in the run-up to a divorce, the moving-out partner may request the partner remaining in the property to cooperate in amending the rental agreement. According to the Hamm Higher Regional Court, decision of January 21, 2016 – 12 UF 170/15.
In the present case, both partners had signed a rental agreement for an apartment. The spouses separated and the divorce proceedings were initiated. As part of the separation, the husband – who had left the apartment – asked his wife for help in changing the rental agreement, which he wanted to get out of. She refused to change the lease after the divorce, and he sued her.
In general, if both spouses have signed a rental agreement, they can only terminate or change it jointly. In this case, the woman wanted to stay in the apartment with their children. From the husband’s point of view, it is understandable that he no longer wants to be liable for the rent and operating costs of his wife’s apartment in the future. For this reason, he wanted to prepare everything before the divorce so that he would also be released from the rental agreement with the divorce. His wife refused to cooperate, arguing that old bills for utilities and renovations were still open.
Conclusion on the joint rental agreement
The husband’s lawsuit was successful, because the Hamm Higher Regional Court granted him the right not to have to stand up for future rent claims. Even before the divorce, the woman must help to change the relevant contract or to jointly inform the landlord about the forthcoming changes to the contracting parties.
Irrespective of this, old claims from unpaid invoices to the landlord remain intact. The woman can therefore still ask her husband to contribute to past costs. However, the change in the rental agreement only comes into effect after the divorce has taken place. The man’s departure from the jointly concluded contract always only affects the future.