Under § 261 (3) (1) of the German Code of civil procedure, double lis pendens represents an obstacle to proceedings.
Accordingly, an action is inadmissible if the plaintiff has previously brought an action against the same party in the same dispute and this other action is pending.
Double lis pendens leads to the dismissal of the second action as inadmissible, depending exclusively on which of the two actions first became pending.
The significance of the key date
The lis pendens rules are established when the competent court notifies the defendant of the divorce petition. From that date, divorce proceedings are deemed to have been started before the competent family court. This key date is important in three aspects:
- the marriage period begins at the beginning of the month in which the marriage was concluded and ends on the last day of the month before the divorce becomes lis pendens
- the spouses’ right of inheritance ends with lis pendens, provided that the divorce conditions are fulfilled.
- the pension rights acquired by both spouses during the marriage up to that date are settled.
Double lis pendens in EU Member States
Under Article 19 (1) of the Brussels Convention, where applications for divorce, legal separation or marriage annulment are brought before courts of different Member States (with the exception of Denmark) by the same parties, the court second seized shall of its own motion pause its proceedings until the jurisdiction of the court first seized is established.
Article 16 of the Brussels IIa Regulation governs when a court is deemed to be seized.
In Member States in which notification to the defendant is essential (as in Germany, for example), the court is deemed to be seized if the claimant has taken all measures incumbent upon him or her to lodge the application with the court.
In Member States where notification to the defendant has to be made before the document is submitted to the court, the date to be taken into account is the date when the document is handed over to the authority responsible for serving it.
Double lis pendens in non-EU Member States
In other countries – e.g. Switzerland or Monaco – foreign lis pendens rules are examined under § 113 (1) sentence 2 FamVG in conjunction with § 261 (3) No. 1 ZPO analogously. In contrast to Art. 19 of the Brussels IIa regulation, the point of reference is not always the time of the appeal, but the time of lis pendens in the respective country. Since service in third countries is often carried out via the German embassies, such service can often take months.
However, the law of the foreign court determines when lis pendens abroad arise. In some foreign legal systems, lis pendens already begin with the submission of the application document. In Switzerland, for example, lis pendens begin with the filing of the divorce petition (Art. 62 Swiss Code of Civil Procedure, Art. 9 para. 2 IPRG).
It is therefore possible that foreign lis pendens block domestic divorce proceedings, even though the divorce petition in the foreign proceedings was served later than in the domestic proceedings.
However, the lis pendens only blocks the domestic court if the foreign judgment is likely to be recognized (so-called recognition prognosis). This is based on § 109 FamFG, unless recognition is regulated by an international treaty. It is examined whether the German court would have international jurisdiction if the conditions were mirrored and whether the document instituting the proceedings was duly served. If all the conditions are met, this does not necessarily mean that an application filed in Germany is dismissed as inadmissible. The court may stay the proceedings if the prognosis for recognition is uncertain and disadvantages could arise from the fact that a judgment which was initially considered to be admissible is not recognized in the end.
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