#5091 - Hoffmann V. Krieg - Conflict of Laws BCL

Hoffmann v. Krieg (1988)

Facts

Proceedings between h. L. M. Hoffman (hereinafter referred to as "the husband ") and a. Krieg (hereinafter "the wife "), concerning the enforcement in the Netherlands of a judgment of the amtsgericht (local court) heidelberg, ordering the husband to make monthly maintenance payments to the wife.

German maintenance order: the parties to the main proceedings are german nationals who were married in 1950 and that, in 1978, the husband left the matrimonial home in the Federal Republic of Germany and settled in the Netherlands. On application by the wife, the husband was ordered by a Decision of the amtsgericht, heidelberg of 21 August 1979 to make maintenance payments to her as a separated spouse.

Divorce granted in Netherlands: the arrondissementsrechtbank (district court), maastricht, granted a decree of divorce by a judgment of 1 May 1980 given in default, applying german law in accordance with Netherlands rules on the conflict of laws. On 19 August the divorce was entered in the civil register at the hague whereupon in the Netherlands the marriage was dissolved. The decree of divorce, which falls outside the scope of the convention, had not been recognized in the Federal Republic of Germany at the time which the national court considers material for the purposes of the case.

Enforcement of the German maintenance order in Netherlands: On the application of the wife, The President of the arrondissmentsrechtbank, almelo, made an order on 29 July 1981 for the enforcement of the judgment of the amtsgericht, heidelberg, in accordance with Article 31 of the convention. On 28 February 1983 the wife obtained an attachment of the husband' s earnings paid by his employer. The husband brought interlocutory proceedings before the arrondissementsrechtbank, almelo, in order to have the attachment order discharged, or at least suspended.

Questions

Does the obligation imposed on the contracting states to recognize a judgment given in another contracting state (Article 26 of the Brussels convention) mean that such a judgment must be given the same effect in the other contracting states as it has under the law of the state in which it was given and does this mean that it is therefore enforceable in the same cases as in that state?

In a case such as this, is it possible to plead that the german maintenance order is irreconcilable with the subsequent Netherlands decree of divorce or to plead public policy (Article 27 (1) and (3) of the Brussels convention)?

Holding

Effect of Recognition

The national court's first question seeks, in essence, to establish whether a foreign judgment, which has been recognized pursuant to Article 26 of the convention, must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given.

In that regard it should be recalled that the convention "seeks to facilitate as far as possible the free movement of judgments, and should be interpreted in this spirit ". Recognition must therefore "have the result of conferring on judgments the authority and effectiveness accorded to them in the state in which they were given" (jenard report on the convention on jurisdiction and the enforcement of judgments in civil and commercial matters, Official Journal 1979, c 59, pp. 42 and 43).

It follows that the answer to be given to the national court' s first question is that a foreign judgment which has been recognized by virtue of Article 26 of the convention must in principle have the same effects in the state in which enforcement is sought as it does in the state in which judgment was given.

Meaning of “irreconcilable” in Art. 34(3)

Whether a foreign judgment whose enforcement has been ordered in a contracting state pursuant to Article 31 of the convention must continue to be enforced in all cases in which it would still be enforceable in the state in which it was given even when, under the law of the state in which enforcement is sought, the judgment ceases to be enforceable for reasons which lie outside the scope of the convention.

In this instance, the judgment whose enforcement is at issue is one which orders a husband to make maintenance payments to his spouse by virtue of his obligations, arising out of the marriage, to support her. Such a judgment necessarily presupposes the existence of the matrimonial relationship.

The national court' s third question seeks, in essence, to establish whether a foreign judgment ordering a person to make...