Bibi Marium Shanavazi

Hearing date: 7 April 2021

Judgment Approved

In this Part 8 claim dated 24 November 2020, the claimant, Bibi Marium Shanavazi, seeks an order authorising her, on behalf of her minor son, Ilyas Firas Shanavazi (“Ilyas”) to enter into a contract of sale of a property in Germany, and to convey the property to the purchaser.

The claimant is the widow of Gohlam Dastagir Shanavazi (“the deceased”), who died on 29 December 2011. They had 5 children, 4 of whom are now adults. Ilyas is the youngest. He was born on 23 December 2004, and is now 16. The claimant and Ilyas are both German nationals.

The factual evidence in support of the claim consists of:

(1) a witness statement dated 14 January 2021 of Mrs Shanavazi;

(2) a witness statement dated 19 January 2021 of Mrs Shanavazi's solicitor, Remi Aiyela;

(3) a witness statement dated 15 March 2021 of Ilyas's sister, Asma Shanavazi (“Asma”).

The evidence also includes a “Legal Opinion” (in the form of a letter to Mrs Shanavazi's solicitor) of Dr Johannes Weber, a German Notary Public based in Freiburg, and various supplementary emails.

Factual background

The deceased owned a property and 2 garages, Hornusstraβe 15, Zähringer Straβe 26, 79108 Freiburg, Germany, and registered at the Land Register for Freiburg Commonhold Register under title numbers 52882, 52892 and 52893 (“the Property”).

The deceased died intestate. Under English private international law, succession to the Property is governed by German law as being the law of the country where the Property is situated: Dicey & Morris (15 ^th edn), Rule 150.

Ilyas lives with his mother. In August 2012 Mrs Shanavazi and Ilyas moved to England with the intention of remaining here permanently. Other than short trips abroad, they have remained in the UK since that date.

They have had secure rented accommodation since their arrival in England. In addition, all of Ilyas' education and schooling have been in English, and his first language is English. He is registered with a GP here, and his family and social life are all in England.

The evidence includes a “Joint Inheritance Certificate” dated 11 January 2013, and an English translation by a professional translator 1. This states that Ilyas is entitled to a 1/10 share in his father's estate. The other persons who are entitled to shares in the property are Mrs Shanavazi (entitled to ¹/₂) and his 4 siblings (each also entitled to 1/10). Dr Weber refers to them as the co-heirs, or community of heirs.

The Property has been rented out in the past, but payment of rent has been irregular. There are ongoing costs for the upkeep and maintenance of the Property, including taxes, which the income is insufficient to meet. The Property is therefore a drain on the family's finances. In addition, since the family no longer live in Germany, they have the inconvenience and expense of travelling to Germany to deal with issues relating to the Property. Asma's evidence is that the current situation is causing all of the family great stress and financial difficulty.

The family therefore wish to sell the Property. To this end, the community of heirs (including Ilyas) have entered into a contract to sell the property for €430,000. This is a significantly higher price than the €330,000 valuation in a valuation report dated 19 November 2020. Asma's evidence is that Ilyas will not become liable for any debts if the Property is sold, though I assume his share will rateably bear the costs and any other expenses (including tax) of the sale.

Dr Weber's report sets out the position under German law as to ownership and sale of property held by a community of heirs. This can be summarised as follows:

(1) If the deceased leaves several heirs, the estate becomes the joint property of the heirs: German Civil Code (“GCC”), §2032;

(2) the co-heirs own each asset in the estate jointly in undivided shares;

(3) to sell property all the co-heirs must act jointly (GCC, Book 5, para §2040(1);

(4) a minor cannot give consent to the sale of property;

(5) a person can be authorised by the family court to consent to the sale of the land on behalf of the minor;

(6) the German land registry will only register a transfer of ownership of land if all the heirs consent.

Jurisdiction – German law

Dr Weber's evidence is that German law defers to Council Regulation (EC) No 2201/2003 (“the Regulation”) 2 to determine where jurisdiction lies in authorising a parent to consent to a sale of jointly held inherited property on behalf of a minor.

Art 1(1)(b) of the Regulation provides:

“This Regulation shall apply … in civil matters relating to…(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.

and art 1(3) provides that it does not apply to trusts or succession.

Article 2(7) of the Regulation provides that the term “parental responsibility” means all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect.

Art 8(1) of the Regulation provides that

“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in in that Member State at the time the court is seized.”

Dr Weber's evidence is an authorisation by a court to consent to a sale of property on behalf of a minor is a matter of parental responsibility falling within the Regulation. His authority for that proposition is the decision of Re Matouskova (C-404/14) [2015] I.L.Pr. 48 (discussed below).

Since Ilyas is and was at material times habitually resident in England, the German courts will not make an order authorising Mrs Shanavazi to consent to the sale on Ilyas' behalf. As a matter of German law, that falls to the courts of this jurisdiction.

Jurisdiction under English law – before and after Brexit

Before the UK left the European Union, the Regulation (as an EU Regulation) had direct effect, and was required to be applied as law by the courts of EU member states. It became part of UK domestic law as a result of provisions in the European Communities Act 1972 3.

The European Union (Withdrawal) Act 2018 (“the 2018 Act”), as amended by the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”), contains provisions for EU law to continue to have effect as part of UK domestic law, unless UK statutory provisions are made to the contrary. Section 3(1) of the 2018 Act provides:

“Direct EU legislation, so far as operative immediately before IP Completion Day, forms part of domestic law on and after IP Completion Day” 4

“IP Completion Day” is 11pm on 31 December 2020 5. Accordingly, if there were no provisions to the contrary in a statutory instrument, the Regulation would remain as part of UK domestic law. However, regulation 3 of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/519) (“JJFAEEUER”) provides “ Council Regulation No. 2201/2003 is revoked”. Thus, the Regulation is revoked as from 11pm on 31 December 2020 6.

There are, however, transitional provisions. Section 7A of the 2018 Act, as introduced by the 2020 Act, gives effect to transitional provisions contained within the UK/EU Withdrawal Agreement. It provides:

“ 7A General implementation of remainder of withdrawal agreement

(1) Subsection (2) applies to—

(a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement, and

(b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement,

as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in the United Kingdom.

(2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be—

(a) recognised and available in domestic law, and

(b) enforced, allowed and followed accordingly.”

Article 67 of the Withdrawal Agreement provides, so far as relevant:

“ Article 67

Jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities

1. In the United Kingdom, … in respect of legal proceedings instituted before the end of the transition period … the following acts or provisions shall apply:

…

(c) the provisions of [the Regulation] regarding jurisdiction …

2. In the United Kingdom, …, the following acts or provisions shall apply as follows in respect of the recognition and enforcement of judgments, decisions, authentic instruments, court settlements and agreements:

…

(b) the provisions of the [Regulation] regarding recognition and enforcement shall apply to judgments given in legal proceedings instituted before the end of the transition period, and to documents formally drawn up or registered as authentic instruments, and agreements concluded before the end of the transition period”

Finally, regulation 8 of JJFAEEUER, as amended by reg 5 of the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020, SI 2020/1574, provides:

“Nothing in these Regulations affects the application of paragraphs 1, 2(b) and (c) and 3(a) and (b) of Article 67 of the withdrawal agreement and legislation amended or revoked by these Regulations continues to have effect for the purposes of those paragraphs as if the amendments and revocations had not been made.”

The upshot of this convoluted legislative journey is...