In an order published on December 14, 2021, the Higher Regional Court of Frankfurt am Main (Oberlandesgericht Frankfurt am Main, OLG Frankfurt) did not recognize a judgment of divorce obtained in Canada. It held that there was no proper service because the foreign divorce papers were sent to the defendant in Germany via the messenger service WhatsApp. It stated that it was irrelevant that the defendant had actual notice of the proceedings because foreign judgments can be recognized only when there is proper and timely service.
Facts of the Case
The applicant, a Canadian citizen, and the defendant, a German citizen, got married in Canada in 2012. They had two children, born in 2013 and 2015, respectively. The couple and their children were residing in Canada. In 2018, they separated and the defendant returned to Germany. The applicant subsequently filed for divorce at the competent Superior Court in Canada in 2019. He served the divorce papers on the defendant via WhatsApp with permission of the clerk of the Canadian Superior Court. The defendant responded but did not enter an appearance and defend herself on the merits. The divorce was granted by the Canadian Superior Court in 2020 and became final and binding the same year. (OLG Frankfurt paras. 1, 2.)
In 2019, the defendant herself initiated divorce proceedings at the district court in Germany. However, the proceedings were suspended when the applicant submitted a request for recognition of the Canadian divorce decree to the president of the Higher Regional Court of Frankfurt am Main, which was granted. The defendant objected to the recognition and requested a court decision.
The Higher Regional Court granted the request of the defendant and repealed the order of the president of the Higher Regional Court. The court explained that recognition of the Canadian judgment could not be granted because there was no proper service as necessary under section 109, paragraph 1, no. 2 of the Act on Proceedings in Family Matters (Gesetz über das Verfahren in Familiensachen (FamFG).) Section 109 of FamFG states that recognition of a foreign judgement is excluded when “the document initiating the proceeding was improper or that notification was untimely.” The court held that it was therefore irrelevant that the defendant had actual notice of the divorce proceedings.
The court explained that the requirements for proper service between Germany and Canada are set out in the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (HCCH 1965 Service Convention). Article 5 of the HCCH 1965 Service Convention lists the methods of service and provides that “[t]he Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.” Service of documents by WhatsApp is not mentioned. Article 10 allows for additional methods of service, including via postal service. The court stated that service via postal service might cover service of documents as a WhatsApp attachment; however, Germany has objected to this expansion of service methods. It is therefore not applicable in this case. The court reiterated that the defendant’s responding to the WhatsApp message by saying “Hello, So I have to sign it?” does not change anything because she didn’t defend herself on the merits.Finally, the court held that even though the defendant did not file an appeal against the Canadian divorce decree in Canada, the divorce cannot be recognized. It stated that the possibility of her filing an appeal is not equal to defending herself in divorce proceedings of which she was properly notified. In the opinion of the court, any other interpretation would rob the defendant of one level of judicial review.