The pension rights adjustment (Versorgungsausgleich) in an international marriage follows its own rules. It does not take place automatically just because a German family court dissolves the marriage. Conversely, it is not excluded just because the divorce was pronounced in Spain, the USA or Thailand. What matters is the law applicable to the divorce, the nationality of the spouses and whether pension entitlements were acquired in Germany. In addition, there is a practical problem that many emigrants underestimate: a German court cannot divide pensions built up with a foreign pension provider. This article reflects the legal position as at September 2026 (Art. 17 (4) of the Introductory Act to the Civil Code, EGBGB; the Pension Rights Adjustment Act, Versorgungsausgleichsgesetz, VersAusglG, as amended by the Amending Act of 12 May 2021, in force since 1 August 2021; the Act on Proceedings in Family Matters, FamFG). Which court dissolves the marriage and which divorce law applies is covered in the article Divorce with a foreign residence; the division of assets under matrimonial property law is explained in the article Equalisation of accrued gains in an international marriage. This article deals with the third, separate question: the equalisation of the pension and retirement entitlements acquired during the marriage.
Pension Rights Adjustment in an International Marriage: Three Steps
In every divorce with a cross-border element, the pension rights adjustment must be examined in three steps:
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| Step | Legal basis | Key question |
|---|---|---|
| International jurisdiction | Section 98 (3) FamFG (joined proceedings), Section 102 FamFG (separate proceedings) | May a German family court decide at all? |
| Applicable law | Art. 17 (4) EGBGB in conjunction with the Rome III Regulation | Does the adjustment take place ex officio, only on application or not at all? |
| Form of equalisation | Sections 9 et seq., Section 19, Sections 20 to 26 VersAusglG | Internal or external division on divorce, or equalisation only afterwards? |
There is no international treaty or EU regulation that governs the pension rights adjustment itself. The Rome III Regulation only determines the divorce law, and the Brussels IIb Regulation (Regulation (EU) 2019/1111) in matrimonial matters only governs jurisdiction for the divorce and its recognition.
International Jurisdiction of German Courts
If the marriage is dissolved in Germany, jurisdiction under Section 98 (3) FamFG extends, in joined proceedings (Verbund), to the ancillary matters (Folgesachen), and therefore also to the pension rights adjustment. According to a widely held view, this also applies if jurisdiction for the divorce itself derives from the Brussels IIb Regulation.
For independent (separate) proceedings, for example after a divorce abroad, Section 102 FamFG governs international jurisdiction. Under this provision, German courts have jurisdiction if
- the applicant or the respondent has their habitual residence in Germany,
- a decision is to be made on German entitlements, or
- a German court has dissolved the marriage.
The second alternative is central for emigrants: anyone who has entitlements with the German statutory pension insurance (Deutsche Rentenversicherung), a professional pension scheme (Versorgungswerk) or a German occupational pension can conduct proceedings in Germany even if both spouses have long been living abroad. In this case, according to the order of precedence in Section 218 FamFG, the Local Court (Amtsgericht) of Schöneberg in Berlin has local jurisdiction as the last resort.
Which Law Applies? Art. 17 (4) EGBGB
Art. 17 (4) sentence 1 EGBGB links the pension rights adjustment to the law applicable to the divorce under the Rome III Regulation. Accordingly, it is only to be carried out if German law applies and the law of one of the states of which the spouses are nationals when the divorce petition becomes pending recognises it. If one of the spouses is German, the second requirement is always met because German law recognises the pension rights adjustment. In these cases, the proceedings run ex officio in joined proceedings, as in a purely German divorce (Section 137 (2) FamFG).
If these requirements are not met, Art. 17 (4) sentence 2 EGBGB applies: the pension rights adjustment is then to be carried out under German law on the application of one spouse if one of the spouses acquired an entitlement with a German pension provider during the marriage, insofar as carrying it out is not inequitable, in particular in view of both spouses’ economic circumstances during the entire marriage. In the version in force until January 2019, the rule was contained in Art. 17 (3) EGBGB.
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| Constellation | Law applicable to the divorce | Consequence for the pension rights adjustment |
|---|---|---|
| German man and French woman live in Cologne | German law (common habitual residence) | Ex officio, because the law of one home state (German law) recognises it |
| Italian man and Spanish woman live in Frankfurt, both with a German pension | German law | Only on application if neither home state’s law recognises it; equity review |
| German couple lives in Portugal, divorce under Portuguese law | Foreign law | Only on application under sentence 2 if German entitlements exist |
| German woman and American man, divorce in the USA | Foreign law | Subsequently possible on application in Germany, insofar as German entitlements exist |
Example: Anna (German) and Marco (Italian) have been living in Milan for years and divorce there under Italian law. Anna worked in Germany before and during the marriage and acquired 14 earnings points (Entgeltpunkte) during the marriage; Marco has only Italian entitlements. Marco can apply in Germany for Anna’s German entitlements to be divided. The court then examines whether this is inequitable in view of Marco’s Italian retirement provision, in which Anna would not share.
The Federal Court of Justice (Bundesgerichtshof, BGH) has specified this standard (BGH, order of 27 January 2021, XII ZB 336/20): the adjustment may be inequitable if one spouse would have to give up German entitlements while the other has retirement provision abroad in which the first spouse does not share. Whether this is the case is decided by the court on the basis of the economic circumstances during the entire marriage.
Section 3 (3) VersAusglG must also be borne in mind: where the marriage lasted up to three years, the pension rights adjustment only takes place if one spouse applies for it.
Foreign Entitlements: Included, but Not Divisible
Section 2 (1) VersAusglG expressly covers entitlements “existing in Germany or abroad”. Foreign pensions are therefore part of the pension rights adjustment. At the same time, Section 19 (2) no. 4 VersAusglG provides that an entitlement with a foreign, intergovernmental or supranational pension provider is not ripe for equalisation (nicht ausgleichsreif). A German court cannot order a foreign pension provider to divide a pension. The court must name these entitlements in the reasons for its decision (Section 224 (4) FamFG) so that equalisation after the divorce remains possible later.
The Equalisation Bar of Section 19 (3) VersAusglG
If one spouse has foreign entitlements that are not ripe for equalisation, no equalisation of values takes place on divorce with regard to the other entitlements either, insofar as this would be inequitable for the other spouse. Typical case: one spouse has only German pension entitlements, the other predominantly foreign ones. If the first spouse had to give up half of their pension immediately while being left with the weaker equalisation under the law of obligations (schuldrechtlicher Ausgleich) themselves, this would be unbalanced.
The Federal Court of Justice has clarified that the inequity does not cease to exist merely because the spouse with foreign entitlements also has higher German entitlements than the other (BGH, order of 5 May 2021, XII ZB 381/20). According to the same decision, foreign entitlements do not lead to a blanket equalisation bar; the family court must examine in each individual case whether the equalisation of the other entitlements would be inequitable.
Determining and Valuing Foreign Entitlements
The family court investigates ex officio (Section 26 FamFG) and can obtain information from all bodies able to provide it (Section 220 FamFG). In practice:
- The Deutsche Rentenversicherung does not calculate foreign entitlements itself, but forwards enquiries to foreign liaison agencies and providers.
- Foreign statutory providers often only supply an insurance record, rarely a calculation of the portion accrued during the marriage.
- For private foreign contracts, the spouse concerned must, as a rule, obtain the information themselves; the spouses owe each other information (Section 4 VersAusglG).
- If the value cannot be determined, the court determines it at its reasonable discretion (Section 42 VersAusglG) or estimates it, if necessary with the help of an expert. The law does not prescribe an exchange rate; in the view of the Deutsche Rentenversicherung, the court sets it.
- Tax-financed basic, national and residence-based pensions are in principle excluded because they are not acquired through work or assets (Section 2 (2) no. 1 VersAusglG).
Special case of the Dutch AOW pension: The Federal Court of Justice included the AOW pension in the pension rights adjustment despite its character as a national pension, albeit still under the former law (BGH, order of 6 February 2008, XII ZB 66/07). Whether this classification continues to apply under Section 2 (2) no. 1 VersAusglG, in force since 1 September 2009, has, as far as can be seen, not yet been expressly decided by the Federal Court of Justice. The question is open. According to its internal legal working instructions (Rechtliche Arbeitsanweisungen), the Deutsche Rentenversicherung continues, as a rule, to take AOW entitlements into account, expressly departing from Section 2 (2) no. 1 VersAusglG and relying on the 2008 decision. This is an administrative view, not a judicial clarification. In practice, it is not a question of division on divorce, since as a foreign entitlement the AOW pension is in any case not ripe for equalisation (Section 19 (2) no. 4 VersAusglG). Rather, the classification determines whether the AOW pension counts in the equity review under Section 19 (3) VersAusglG and whether it is later subject to equalisation claims under Sections 20 et seq. VersAusglG. Anyone who has acquired AOW periods should therefore state them in the proceedings and not treat the question as settled.
Foreign insurance periods also affect German entitlements: within the EU, the EEA and in relation to Switzerland, they are included in an intergovernmental calculation; under social security agreements, usually only for qualifying periods. Experience shows that it takes months until the foreign periods have been clarified; this delays the entire divorce proceedings.
Equalisation After Divorce: Sections 20 to 26 VersAusglG
Whatever cannot be divided on divorce remains reserved for equalisation claims after the divorce (Section 19 (4) VersAusglG). These claims are in principle directed against the former spouse personally, not against the foreign pension provider.
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| Claim | Provision | Content | Requirement |
|---|---|---|---|
| Equalisation pension under the law of obligations (schuldrechtliche Ausgleichsrente) | Section 20 | Payment of the equalisation value as a pension | The spouse liable to equalise receives the pension; the entitled spouse receives their own pension, has reached the standard retirement age or is incapacitated |
| Assignment | Section 21 | Assignment of the claim against the pension provider in the amount of the equalisation pension | Current pension, not for arrears |
| Capital payments | Section 22 | Share in capital paid out | Capital payment from an entitlement that has not been equalised |
| Earmarked compensation payment | Sections 23, 24 | Payment of the current value into a target pension scheme | Entitlement secured as to its basis and amount; payment reasonable |
| Survivors’ share | Section 26 | For a foreign entitlement, a claim against the widow or widower | Death of the spouse liable to equalise, survivors’ benefit is paid |
The compensation payment (Abfindung) is of particular importance for foreign entitlements because it brings the equalisation forward. According to the above-mentioned decision of the Federal Court of Justice of 5 May 2021, it can already be decided on in the divorce proceedings if the foreign entitlement is sufficiently secured. In the case decided, concerning a US retirement plan, this was lacking because the benefits depended on the economic development of the employer.
Two pitfalls must be noted: the court only decides on all of these claims on application (Section 223 FamFG). And the claims under Sections 20 to 24 lapse on the death of a spouse (Section 31 (3) VersAusglG). Anyone who only asserts their claim years after the start of the pension also risks receiving only limited payment for the past (Section 20 (3) VersAusglG in conjunction with Section 1585b of the Civil Code, BGB). If the former spouse lives abroad, the question also arises of how a German enforceable title for payment can be enforced there; the basics are explained in the article Enforcing German judgments abroad.
Catching Up After a Divorce Abroad
A foreign court does not divide German entitlements. If it has ruled on German pension entitlements, the German pension insurance providers, according to their own statements, do not implement such a decision. The pension rights adjustment for German entitlements must therefore be carried out subsequently in separate proceedings before a German family court. This does not happen automatically, but only on the application of one of the former spouses (Art. 17 (4) sentence 2 EGBGB). There is no statutory deadline for the application; the provision only requires the application and that the equalisation is not inequitable.
The prerequisite is that the foreign divorce is effective in Germany:
- Divorce in an EU member state (except Denmark): It is recognised under Art. 30 (1) of the Brussels IIb Regulation without any special procedure; for proceedings before 1 August 2022, the same applied under the predecessor Regulation (EC) No 2201/2003. The family court examines recognition itself.
- Divorce in a third country: In principle, a declaration by the state justice administration (Landesjustizverwaltung) under Section 107 FamFG is required; in some federal states, this task has been delegated to the president of a Higher Regional Court (Oberlandesgericht). If neither spouse has their habitual residence in Germany, the justice administration of the state of Berlin is, as a rule, responsible.
- Exception for decisions of the home state: If both spouses were nationals of the state that dissolved the marriage, the recognition procedure is not required (Section 107 (1) sentence 2 FamFG).
Recognition only covers the dissolution of the marriage, not the arrangements made abroad regarding the consequences of the divorce. Foreign entitlements cannot be divided in the separate German proceedings either; for them, the claims under Sections 20 et seq. VersAusglG remain.
Costs and formal requirements: according to information from the Deutsche Rentenversicherung, the separate proceedings are not free of charge either; the court allocates the costs at its reasonable discretion (Section 81 FamFG). There is no requirement to be represented by a lawyer in independent pension rights adjustment proceedings before the family court and the Higher Regional Court, because Section 114 (1) FamFG only prescribes this for matrimonial matters, ancillary matters and independent family dispute matters; a separate pension rights adjustment case is none of these. The position is different before the Federal Court of Justice (Section 114 (2) FamFG).
Agreements and Choice of Law Before or After Emigration
Under Section 6 VersAusglG, spouses can regulate the pension rights adjustment: include it in the arrangement of their financial affairs, exclude it in whole or in part, or reserve it for equalisation claims after the divorce. Before the decision on the equalisation of values becomes final, such an agreement requires notarial recording (Section 7 VersAusglG); a settlement recorded by the court is also sufficient. It must withstand a review of its content and of the exercise of rights under it (Section 8 (1) VersAusglG). Entitlements can only be transferred or created by agreement if the pension provider’s rules permit this and the provider consents (Section 8 (2) VersAusglG). For foreign entitlements, offsetting them against German entitlements or a compensation payment often avoids lengthy investigations. The scope for arrangements that German law offers even during an existing marriage is shown in the article Optimising the pension rights adjustment, even during the marriage.
The pension rights adjustment can also be controlled indirectly through the choice of divorce law. Under Art. 5 of the Rome III Regulation, spouses can choose, among other things, the law of their common habitual residence or the law of a state of which one of them is a national. If German-foreign or German spouses choose German divorce law before moving abroad, Art. 17 (4) sentence 1 EGBGB leads to the pension rights adjustment ex officio, provided that a German court decides on the divorce. In Germany, the choice of law must be notarially recorded; it is possible until the close of the oral hearing at first instance (Art. 46e EGBGB). Nationality thus remains an important connecting factor.
Whether a foreign court recognises such a choice of law or an agreed exclusion depends on its law. For this, you should consult an adviser admitted in the destination country. Matrimonial property law and post-marital maintenance follow their own connecting factors; on maintenance, see Enforcing maintenance claims abroad.
Deutsche Rentenversicherung and Residence Abroad
The Deutsche Rentenversicherung participates in the proceedings as a pension provider and, as a rule, divides the statutory entitlements internally. The entitled spouse thereby receives an entitlement of their own, even if they have never worked in Germany. Whether and in what amount this pension is later paid abroad depends on the general rules on exporting pensions, which are set out in the article German pension insurance when emigrating.
Clarifying the insurance account (Kontenklärung) before moving abroad, including foreign insurance numbers and periods of employment, noticeably shortens later divorce proceedings.
Typical Mistakes in Practice
- People rely on the foreign divorce court having “settled everything” and never file the application in Germany.
- The divorce decision refers foreign entitlements to equalisation after the divorce, and nobody later files the necessary application under Section 223 FamFG.
- Foreign entitlements are not stated in the proceedings; the equity review under Section 19 (3) VersAusglG then does not take place.
- A private pension contract abroad is confused with a national pension and wrongly left out of the equalisation.
- An agreement on the pension rights adjustment concluded abroad does not meet the German formal requirement of Section 7 VersAusglG.
Conclusion
The pension rights adjustment in an international marriage depends on the law applicable to the divorce: if German divorce law applies and the law of one of the spouses’ home states recognises the adjustment, it takes place ex officio. Otherwise, either spouse can apply for it as soon as entitlements have been acquired in Germany, even years after a divorce abroad. Foreign pensions are included but not divided; they remain reserved for the weaker claims after the divorce and, via Section 19 (3) VersAusglG, can mean that the equalisation of the other entitlements does not take place either, insofar as it would be inequitable. Anyone who emigrates or lives in an international marriage should document their insurance periods and have an agreement or choice of law examined at an early stage.
Frequently Asked Questions
Does a pension rights adjustment take place automatically in the case of a divorce abroad?
No. A foreign court does not divide German entitlements. The adjustment must be applied for in Germany in separate proceedings. If both spouses live abroad, the Local Court of Schöneberg in Berlin will, as a rule, have jurisdiction.
Is there a deadline for a subsequent application?
There is no statutory deadline for the application. Waiting is nevertheless risky: if a spouse dies after the divorce but before the decision on the equalisation of values, the surviving spouse can assert their claim against the heirs (Section 31 (1) VersAusglG); the heirs of the deceased, by contrast, have no right of their own to equalisation. Equalisation claims under the law of obligations under Sections 20 to 24 VersAusglG lapse on the death of a spouse (Section 31 (3) VersAusglG).
Can a German court divide my foreign pension?
No. Entitlements with foreign pension providers are not ripe for equalisation under Section 19 (2) no. 4 VersAusglG. They are equalised by means of an equalisation pension, an assignment or a compensation payment under Sections 20 to 24 VersAusglG.
Do I have to accept a pension rights adjustment even though my former spouse has a high foreign pension?
Not necessarily. Section 19 (3) VersAusglG and, in the case of foreign divorces, the equity clause of Art. 17 (4) sentence 2 EGBGB allow the adjustment to be refused in whole or in part. For this, the foreign entitlement must be determined at least approximately.
Can we exclude the pension rights adjustment before emigrating?
Yes, by means of a notarially recorded agreement under Sections 6 to 8 VersAusglG, which must withstand a review of its content. Whether foreign courts will respect it should be examined by an adviser in the destination country.
Attorney Dr. Johannes Fiala and the Munich-based firm, which focuses on family, succession and asset law with a cross-border dimension, advise on the consequences of an international marriage for retirement provision, from the agreement before moving abroad to the subsequent pension rights adjustment after a divorce abroad. Dr. Fiala has published extensively on questions of emigration and asset protection. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
