Characterization and Incidental Question in German Private International Law: The Problem of 'Limping Marriages' (Qualifikation und Vorfrage im Internationalen Privatrecht am Beispiel hinkender Ehen)

Abstract

The paper addresses legal issues under German private international law in cases concerning so-called 'limping marriages' under both the Hague Maintenance Convention 1973 and under material German law. Such marriages occur in cases where one jurisdiction, mainly the spouse's home jurisdiction, recognizes a marriage as valid whereas the law of the state in which the marriage was concluded (the 'lex loci celebrationis') considers such marriage void on formal grounds. The article will consider, in Part B, resulting problem areas in case where post matrimonial maintenance claims. The legal intricacies discussed emanate from the fact that German matrimonial law only considers marriages as valid if the celebration was conducted before a public registrar. Foreign laws often permit, in contrast, religious ceremonies as sufficient. The effect is that German law treats such marriages as void, and that, in case German substantive law is applicable, maintenance claims will fial even though the spouses would consider themselves married. The legal issues arising are highly problematic from a conflict of laws point of view, in particular as regards the characterization of such maintenance claims as falling under the Hague Convention or as a matter of domestic conflicts of laws as well as concerning questions of the proper connecting factor under Article 4 (1) of the Hague Convention and ensuing uncertainties regarding the fundamental issue of preliminary questions under convention and domestic law. Part C will introduce to the debate surrounding potential claims for maintenance in cases of cohabitation, and will assess the scope to which the scope to which foreign law is recognized under German conflict rules.

Note: Downloadable document is in German.

Keywords: Conflict of laws, maintenance law, theory of characterization, incidental question, Hague convention