A German married couple has lived in Spain for years; a German husband and his Brazilian wife have the centre of their lives in Portugal; or a binational couple separates after one of them has returned to Germany – in all these scenarios, before any substantive question about maintenance or the equalisation of accrued gains arises, two entirely practical preliminary questions present themselves: at which court can the divorce be applied for in the first place? And which substantive divorce law will that court then apply – German law, the law of the state of residence, or a third law altogether? In practice, these two questions are frequently conflated, even though they must be kept strictly separate as a matter of law and are governed within the European Union by two different regulations. This article explains both questions and shows what needs to be considered when a divorce granted abroad is to be recognised in Germany.
Two Separate Questions: Jurisdiction and Applicable Law
Anyone dealing with a divorce with a foreign element should distinguish between two levels from the outset. The first level is international jurisdiction: which state’s court is entitled to decide on the divorce application at all? Within the EU, this is answered by the Brussels IIb Regulation (Regulation (EU) 2019/1111). The second, independent level is the applicable law: under which substantive divorce law does the competent court then assess whether, and under what conditions, the marriage is dissolved? For this, within the participating Member States, the Rome III Regulation (Regulation (EU) No 1259/2010) is decisive. A German court can therefore very well have jurisdiction while nonetheless having to apply foreign law – and conversely, a foreign court can have jurisdiction and apply German law. This distinction is the key to understanding the whole subject.
Which Court Has Jurisdiction? The Brussels IIb Regulation
Since 1 August 2022, Regulation (EU) 2019/1111 (the Brussels IIb Regulation) has applied to international jurisdiction in matrimonial matters, replacing its predecessor, Regulation (EC) No 2201/2003 (Brussels IIa). For proceedings initiated before 1 August 2022, the old Brussels IIa version continues to apply under the new Regulation’s transitional provisions. Both regulations apply directly in all EU Member States except Denmark, which – as with most instruments of judicial cooperation in civil matters – does not participate.
Figures on international divorces: according to the figures the EU institutions used to justify the introduction of the Rome III Regulation and the reform of the Brussels II regime, around 140,000 of the more than one million divorces in the then EU-27 in 2007 had an international element – around 13 percent. Germany topped the list with around 34,000 cross-border divorce cases, ahead of France (around 20,500) and the United Kingdom (around 19,500).
Article 3 Brussels IIb: Six Connecting Factors Based on Habitual Residence, and a Seventh Based on Common Nationality
Article 3 Brussels IIb governs general jurisdiction for divorce, legal separation and marriage annulment. The provision – substantively unchanged from the old Brussels IIa version – lists several alternative, equally ranked grounds of jurisdiction linked to the spouses’ habitual residence:
- the state in which both spouses have their habitual residence,
- the state of the spouses’ last common habitual residence, insofar as one of them still resides there,
- the state of the respondent’s habitual residence,
- in the event of a joint application by both spouses, the state in which either of them has their habitual residence,
- the state of the applicant’s habitual residence, if he or she has lived there for at least one year immediately before the application was made, or
- the state of the applicant’s habitual residence, if he or she has lived there for at least six months immediately before the application was made and is a national of that state.
In addition, Article 3(b) Brussels IIb opens up a separate ground of jurisdiction, independent of any habitual residence: the Member State of which both spouses hold nationality.
In practice, this list means that several courts in different Member States can regularly have jurisdiction at the same time – for example, the court of the spouses’ joint residence and, simultaneously, the court of their joint home state. In such cases, the applicant has a genuine choice between the courts with jurisdiction; neither court takes precedence over the other. However, if proceedings concerning the same marriage are brought before courts of two different Member States, the Regulation’s lis pendens rule applies: the court first seised retains jurisdiction, and the court seised later must stay its own proceedings. In practice, this rule favours whichever spouse acts first – a factor that should be considered at an early stage where separation with a foreign element is looming.
Which Law Applies? The Rome III Regulation
Once international jurisdiction has been established, the second, independent question follows: which substantive divorce law does the competent court apply? Within the EU, this is answered by the Rome III Regulation (Regulation (EU) No 1259/2010), which has applied since 21 June 2012. Unlike the Brussels IIb Regulation, however, Rome III does not apply directly in all Member States; instead, it was introduced by way of what is known as enhanced cooperation, initially among 14 Member States, with Lithuania and Greece joining later. Germany, France, Italy, Spain, Belgium, Austria and Portugal are among the participating states, as are Bulgaria, Hungary, Latvia, Lithuania, Luxembourg, Malta, Romania, Slovenia and Greece. States such as the Netherlands, Poland, Sweden, Denmark and Ireland, by contrast, do not participate and continue to apply their own private international law to divorces with a foreign element. An important point here: Rome III applies universally, meaning that a German court applies the Regulation even where the law it points to is the law of a non-Member State or of a non-participating Member State.
Article 5 Rome III: Choice of Law by the Spouses
In Article 5, the Regulation gives spouses the option of determining for themselves the law applicable to their divorce – a freedom of choice of law that did not exist in this form in German private international law before Rome III. The following options are available:
- the law of the state in which the spouses have their habitual residence at the time the choice of law is made,
- the law of the state of their last common habitual residence, insofar as one of them still lives there at the time the choice of law is made,
- the law of the state of which one of the spouses is a national at the time the choice of law is made, or
- the law of the state of the court seised.
The choice of law can be made or changed at any time, but at the latest when the court is seised; if the law of the state whose court is seised permits it, the spouses may also make the choice during the proceedings. It must be made in writing, dated and signed by both spouses; certain participating Member States – including Germany – may additionally impose further formal requirements, such as notarisation, where both spouses have their habitual residence there at the time the choice of law is made.
Article 8 Rome III: The Cascade of Connecting Factors in the Absence of a Choice of Law
If the spouses have not made a choice of law, Article 8 determines the applicable law by means of a fixed cascade of factors to be examined in sequence:
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| Step | Connecting factor | Condition |
|---|---|---|
| 1 | Common habitual residence | At the time the court is seised |
| 2 | Last common habitual residence | Residence ended no more than one year before the court was seised, and one spouse still lives there |
| 3 | Common nationality | Of both spouses at the time the court is seised |
| 4 | Law of the court seised (lex fori) | If none of the preceding steps applies |
Each step applies only if the preceding one is not satisfied – the court may not jump straight to whichever step would be most favourable in the specific case, but must work through the cascade from top to bottom. In the overwhelming majority of cases, the first step alone – common habitual residence at the time the application is made – will result in the application of the law of the state of residence, irrespective of the spouses’ nationality.
Two supplementary provisions deserve mention: if the law that would otherwise apply under Article 5 or Article 8 does not provide for divorce, or does not grant one spouse equal access to divorce on the grounds of sex, Article 10 instead directs the application of the law of the state of the court seised – a safeguard clause protecting German or other participating states’ ordre public. And under Article 13, courts of a participating Member State whose own law does not provide for divorce, or which does not regard the marriage in question as valid for the purposes of divorce proceedings, are not obliged to pronounce a divorce on the basis of the Regulation.
An Illustrative Example
The following example is purely fictional and serves for illustration only; it does not describe a real case or a real person. A German national and his Filipino wife initially live together in Portugal for seven years. After separating, the husband moves back to Germany and lives there for eight months before applying for divorce; the wife remains in Portugal. A German court has jurisdiction under Article 3(a) Brussels IIb, because the husband has had his habitual residence in Germany for at least six months and is a German national. As for the applicable law, however, German law does not apply automatically: since there is no longer a common habitual residence (step 1 is ruled out), but the last common habitual residence in Portugal was less than twelve months ago and the wife still lives there, Portuguese divorce law must be applied under Article 8(b) Rome III – even though a German court is deciding the case. Had the spouses instead made a prior choice of law under Article 5 Rome III in favour of German law, German substantive divorce law would have applied instead.
Recognition of Foreign Divorce Judgments in Germany
Anyone who has divorced abroad regularly faces a further question that is often underestimated in practice: will this divorce actually be recognised in Germany? Without recognition, the marriage remains in existence from a German perspective – creating what is known as a limping marriage (hinkende Ehe), which can, for example, block a new marriage in Germany and also trigger follow-on problems in inheritance and social security law.
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| Origin of the decision | Recognition in Germany |
|---|---|
| EU Member State (except Denmark), proceedings from the respective date Brussels IIa/IIb took effect | Automatic, without any special procedure (Article 30 Brussels IIb); on application, a court can formally confirm the absence of any grounds for refusing recognition |
| Third country, decision of a court or authority of the spouses’ common home state | Recognition takes effect by operation of law, without a formal procedure (section 107(1), second sentence, FamFG) |
| Third country, all other cases | A formal recognition procedure before the competent state justice administration is required (section 107 FamFG) |
For divorces from an EU Member State (other than Denmark), automatic recognition without any special procedure has applied under Article 30 Brussels IIb since Brussels IIa, and subsequently its successor Brussels IIb, took effect – a German registry office or court must, in principle, simply accept the foreign decision as a matter of course. For divorces from a third country outside the EU, by contrast, a formal recognition procedure under section 107 FamFG is generally required. The competent authority is the state justice administration of the federal state (Bundesland) in which one of the spouses has their habitual residence – in several federal states, this task is delegated to the presidents of the regional higher courts (Oberlandesgerichte), for example the President of the Higher Regional Court of Düsseldorf for North Rhine-Westphalia; if neither spouse resides in Germany, the Berlin Senate Department for Justice has jurisdiction. The fee for the decision depends on the applicant’s income and, according to the Düsseldorf Higher Regional Court, ranges between EUR 15 and EUR 305.
An important exception to this formal procedure is contained in section 107(1), second sentence, FamFG: if the marriage was dissolved by a court or authority of the state of which both spouses were nationals at the time of the decision – a so-called home state decision (Heimatstaatentscheidung) – a formal recognition procedure is not required; the divorce then takes effect by operation of law. So if both spouses are, for example, US nationals and the divorce was pronounced by a court in the United States, formal recognition is unnecessary – in practice, however, German registry offices frequently still require corresponding evidence before relying on the divorce for their own records.
A Brief Look at Matrimonial Property Law: A Separate Connecting Factor
Strictly separate from the question of the applicable divorce law is the question of which law applies to the matrimonial property regime – for example, to an equalisation of accrued gains (Zugewinnausgleich). Since 29 January 2019, this has been governed, within a group of participating Member States, by the EU Matrimonial Property Regimes Regulation (Regulation (EU) 2016/1103), which sets out its own connecting factors independent of the divorce statute and likewise grants spouses a limited choice of law. Because the divorce law applicable under Rome III and the matrimonial property law applicable under the Matrimonial Property Regimes Regulation can diverge, this topic deserves separate, in-depth treatment that would go beyond the scope of this article.
When Is Legal Advice Worthwhile?
In the case of an impending separation with a foreign element, an early legal review is particularly worthwhile where several courts could have jurisdiction at the same time and the lis pendens rule gives an advantage to whichever spouse acts first, where the spouses hold different nationalities or live in different states, where a choice-of-law agreement under Article 5 Rome III seems advisable to create legal certainty as to the applicable law, or where a divorce already granted abroad still needs to be recognised in Germany, for example before remarrying. Even where the foreign law applicable in a particular case differs significantly in substance from German divorce law – for instance on questions of access to divorce – an early assessment can prevent later surprises.
Rechtsanwalt Johannes Fiala and the firm have published extensively on international family law and support clients in clarifying international jurisdiction and the applicable divorce law where a foreign residence is involved, in drafting choice-of-law agreements under the Rome III Regulation, and in having divorces pronounced abroad recognised in Germany. If your divorce has a foreign element, contact the firm at an early stage to discuss your individual situation in an initial consultation.
