Which law is applied in the event of divorce?

Germany is one of the participating member states in the EU Rome III Regulation. The EU Rome III Regulation sets down uniform rules for all participating Member States on which law is to be applied in the event of a divorce in an international context.
Rome III applies to the following 17 Member States participating in the regulation: Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. Further countries can follow.

Rome III includes the following important regulations:

• The couple can decide themselves which law is to be used for their divorce. They can choose the law of a state of which one of the spouses is a national. (Choice of law, see below)
• If they do not choose a law, the divorce is always governed by the law of the state in which the couple have their habitual residence¹. This depends on the point of time at which the court is seized of the divorce case.
• If the couple no longer have a shared habitual residence, the law of the place of the last shared habitual residence shall be applied.
• If neither spouse still resides there, or if one of the spouses left this place more than one year ago, the law of the court deciding on the divorce shall be applied.

Foreign divorce law is also to be applied when it is not the law of a Member State participating in Rome III. Only if the foreign law does not provide for divorce or if a spouse is not afforded equal access to divorce on the grounds of their gender is this law not to be applied, but rather the law of the forum seized of the case. The application of a provision of applicable law can otherwise only be refused if its application is incompatible with the public order of the state in which the forum is based.

Courts in countries other than those mentioned above apply the rules of their own private international law to decide which law should govern the divorce.

The Rome III Regulation does not clarify which law applies for other questions related to the divorce (consequences of the marriage in terms of property, maintenance obligations, name of the spouses, parental responsibility, trusts or successions).

What is important for the choice of law?

Time factor

The Rome III Regulation creates the possibility for spouses themselves to decide which law should govern their divorce. Such a choice of law can also be made shortly before the court is seized of the divorce case, and in Germany the decision can even be made after proceedings have begun. It is, however, advisable to make the choice at an early stage.

If spouses have, in exceptional cases, set down their choice of law with regard to divorce in a prenuptial agreement prior to the entry into force of Rome III, this decision remains valid. However, a choice of law which refers only to the property consequences of the marriage does not apply to the divorce.

Formal requirements

Rome III requires the written form (for example, written using a PC, dated and signed by both spouses).

The written form is also sufficient if spouses are habitually resident in a state not participating in Rome III (see above) and want to divorce before a German court.

However, if at least one of the spouses has their habitual residence in a Member State participating in Rome III at the time of the choice of law, and additional formal requirements exist in that state, it is imperative that these are complied with, otherwise the choice of law could be invalid.

In German law, a notarial act is required for the agreement on the choice of law. However, this only applies if both spouses are habitually resident in Germany at the time of the choice of law or if one spouse is habitually resident in Germany and the other in a state not participating in Rome III or if the choice of law is to be made during the pending divorce proceedings in Germany.

Recognition of a foreign divorce in Germany

In principle, a court judgement or decision is only valid in the country in which it was issued. Every state is free to determine whether and under which conditions it will recognise foreign judgements, unless it has committed to do so by treaty.

The divorce is thus initially only valid in the country in which it has taken place. In German civil status records and registers of residents, spouses continue to be listed as such despite divorcing abroad until the foreign divorce has been recognised in Germany under German law. It is not possible to enter into another marriage in Germany until that has taken place (prohibition of bigamy). If a further marriage is entered into abroad before the dissolution of the first marriage has been recognised in Germany, the second marriage is considered bigamy and can thus be annulled.

Upon recognition, the divorce is valid under German law with retroactive effect from the date on which the foreign judgement or decision entered into force.

What is the purpose of the recognition procedure?

The recognition procedure clarifies whether the marriage exists. A large number of legal consequences hinge upon the question of whether two people are married to one another, because a marriage has far-reaching implications in terms of taxation law, foreigners law, social law and civil law – for example as regards the statutory rules of inheritance for spouses.

The recognition is, however, restricted to the dissolution of marriage. Any other arrangements included in the foreign judgement or decision regarding matters arising from the divorce (maintenance claims, pension arrangements, property issues) are not affected by the decision of the Land judicial administration authorities. If any of these matters is in dispute or in need of further action in Germany, you must approach the German civil courts.

Special EU regulations

Pursuant to the Brussels IIb Regulation, decisions made in a member state of the EU (with the exception of Denmark) are recognised in the other member states without a special procedure. The judgement or decision on the divorce and a certificate in a certain form from the court or the authority of the member state where the divorce was obtained are all that need to be submitted as proof of the validity of the divorce.

Where a legal interest is given (a binding clarification of civil status for a case arising from the divorce or for registration or taxation purposes), a formal procedure to have the divorce recognised in Germany can still be applied for (see below).

Recognition procedure in other cases

Exception: decision taken by the parties’ state of origin (only in cases where neither spouse is German)

If one of the two spouses is also a German national, a recognition procedure is mandatory. The recognition procedure is not necessary for decisions taken by the parties’ state of origin, i.e. if:

• both spouses have the same nationality at the time of the divorce and
• the divorce took place in this state
• and neither spouse was subject to an alternative personal statute (e.g. as a stateless foreigner, asylum seeker or foreign refugee).

Where a legal interest is given (a binding clarification of civil status for a case arising from the divorce or for registration or taxation purposes), however, a formal procedure to have the divorce recognised in Germany can be applied for.

Formal recognition procedure

In all other cases, formal recognition of foreign judgements or decisions in matrimonial matters must still be obtained (section 107 (1), Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction). The judicial administration authorities of the Land in which one of the spouses has their habitual residence have local jurisdiction. If neither of the spouses is resident in Germany, but a new marriage is to be entered into here, the authorities of the Land where the marriage will take place have jurisdiction. If neither of the spouses is resident in Germany and a new marriage is to be entered into abroad, the Senate Department for Justice in Berlin has jurisdiction.

Recognition is only undertaken upon application. In addition to the spouses themselves, all persons who can prove a legal interest in the clarification of the status issue may also apply (e.g. fiancé(e)s, subsequent spouses and heirs).

In order to prove that a marriage has been dissolved abroad, the marriage certificate, divorce decree and, if necessary, other documents must be submitted. Please refer to the information on the use of foreign public documents in Germany.

For further information on the recognition procedure, please contact the Senate Department for Justice in Berlin, the registry office at your place of residence or at the place of your intended marriage, or the relevant Land judicial administration authorities.

Recognition of a German divorce abroad

In principle, a court judgement or decision is only valid in the country in which it was issued. Every state is free to determine whether and under which conditions it will recognise foreign judgements and decisions, insofar as it is not bound to do so by treaty.

Special EU regulations

German divorce decrees are recognised without a special procedure in the EU member states (with the exception of Denmark) pursuant to Council Regulation (Brussels IIb). The judgement on the divorce and a certificate issued by the German court are all that need to be submitted as evidence of the validity of the divorce.

Different regulations around the world

All other states usually require a decision by a court or authority of their own before they will recognise German divorces. Bilateral or multilateral agreements are in force with some states which facilitate the mutual recognition of divorce decrees. In some states foreign divorces are not recognised as a matter of principle and must, where necessary, be repeated there.

The foreign missions in Germany can provide information about procedures for the recognition of German divorce decrees in their sending states. For the addresses of the foreign missions in Germany, click here (in German).

In such cases, it is advisable to seek legal advice to clarify how to proceed. A list of lawyers for the country concerned can be found on the website of the competent German mission abroad. The German Bar Association also provides a directory of lawyers on its website (in German).

More information on the competence of Schöneberg local court in Berlin for family matters concerning Germans living abroad is available here (in German).

¹The “habitual residence” is the place where a person lives in circumstances which make it clear that this person is not merely staying in this place or region temporarily. To ascertain this, the primary focus of social contacts in the family sphere and professional activity, among other things, is taken into account. A planned continuous stay of more than six months is always considered to be more than temporary from the outset, regardless of short interruptions.

The habitual residence of a person or a couple can therefore change upon them moving to a different place. This applies to persons moving abroad permanently, but also to those who move abroad for longer than six months. In the case of seconded diplomats, a different decision may be made on what constitutes the habitual residence, meaning that it may not be in the receiving state, due to the temporary duration of their secondment and the absence of an intention to integrate. Each case must be examined individually.