Two nationalities: under which law will we be divorced?

Two passports, two possible answers

A second passport changes the starting position, but not always in the hoped-for direction. German private international law distinguishes strictly according to which nationalities stand alongside the German one and whether the other spouse shares the same.

Two groups of cases lead to two entirely different answers.

What the nationality is actually needed for

Before it comes to choosing between two passports, it is worth looking at where nationality appears in the proceedings at all. It is decisive less often than most people assume.

For jurisdiction it is one of several connecting factors of equal rank. The habitual residence of both spouses is already enough, and where that exists, passports no longer matter.

For the applicable divorce law it sits on the third rung of the ladder, behind the joint and the last joint residence. It only becomes important where both residence rungs drop out.

For matrimonial property it counts only where there was never a joint residence after the marriage.

From that follows a practical rule of thumb. Where both spouses live here, the question of passports is mostly academic. It becomes interesting as soon as the residences fall apart, and that is exactly when it becomes difficult.

Only foreign passports: the closest connection decides

Where somebody holds several foreign nationalities without the German one, the law does not choose between them arbitrarily. What counts is the nationality with which the person is most closely connected, usually through habitual residence or the course of their life so far Art. 5 (1) sentence 1 EGBGB.

A nationality that exists only on paper takes second place in that. Anyone who has lived in Frankfurt for twenty years with an Italian and an Argentinian passport is by that yardstick regularly treated as Italian, provided the connection to Italy predominates.

A German passport displaces the others, almost always

The case is different as soon as German nationality comes into it. By operation of law it automatically takes precedence over the others, regardless of the actual closeness to the other state in question Art. 5 (1) sentence 2 EGBGB.

Someone who has lived in Canada since birth and has never been to Germany but holds German nationality through a parent is nevertheless German for German conflict-of-laws purposes. That blanket rule reaches a limit as soon as the second nationality is that of another EU member state. On the predominant view, the automatic precedence of German nationality then offends the EU-law prohibition of discrimination Art. 18 TFEU. The closest connection counts again.

A final clarification by the highest courts for every constellation is still outstanding.

Where both spouses share the same second nationality

A third case concerns not the individual but the couple. Where both spouses jointly hold a second nationality, that nationality can count for the jurisdiction of the courts, entirely regardless of whether it is the closest connection.

The Court of Justice of the European Union decided precisely that constellation: a Hungarian-French couple could rely on both nationalities in order to bring proceedings before Hungarian or French courts as they chose CJEU, C-168/08, Hadadi. Jurisdiction under Brussels IIb attaches to the joint nationality of both spouses without requiring any test of effectiveness Art. 3 (1) (b) Regulation (EU) 2019/1111.

Whether the same generosity carries over to the applicable law under Rome III is discussed in the literature but has not yet been finally settled Art. 8 (c) Rome III Regulation.

For couples with a shared second nationality a close look is worthwhile nonetheless. Choosing between two fora decides duration and costs, and in the end maintenance and assets too.

The one tangible advantage of the German passport

Alongside all the doctrine there is one point that translates directly into weeks.

Anyone basing the application on their own habitual residence alone has in principle to have lived in that state for a year. For German nationals returning to Germany, that period is shortened to six months Art. 3 Regulation (EU) 2019/1111.

For someone coming back after years abroad who wants to run the divorce here, that is the most tangible difference a second passport makes. It moves the earliest possible application forward by half a year.

Which point in time counts

Nationalities change. They are acquired during the marriage, occasionally given up, and then the question is which state of affairs governs.

The answer differs by regulation. For jurisdiction what matters is the moment the court is seised. Matrimonial property, by contrast, attaches to the position at the time of the marriage and freezes it there.

Anyone naturalized after ten years of marriage may therefore have changed the jurisdiction and nothing about the property regime. This lack of synchronicity is one of the most frequent sources of error in binational cases.

What you should bring along

The first conversation almost always shows the same pattern. The passports are known, the grounds on which they were acquired are not. Half the analysis hangs on them.

It helps to be able to say three things about each nationality: since when it exists, how it was acquired, so by birth, descent, naturalization or marriage, and whether it still exists. Some states let an earlier nationality lapse automatically on acquiring a new one, and anyone unaware of that is counting on a passport that legally no longer exists.

On top of that the periods of residence, with years if possible. In most cases they decide more than the passports themselves.

What that means for your case

How many passports are in play says nothing on its own about which law applies in the end. Nationality is only one of several connecting factors, and in the order of examination it usually comes after habitual residence.

Two further questions therefore belong with it: where can you file, and what follows from that? Those are dealt with by which country has jurisdiction for the divorce? and which law applies to the divorce?.

Where the marriage was concluded abroad, married abroad: divorce in Germany? comes on top. The overview of all four sets of rules is given by our page on international family law.