Two nationalities: under which law will we be divorced?

Two passports, two possible answers

A second passport changes your starting position, but not always in the direction you hope. German private international law decides which country’s law applies, and it draws a strict line: is one of the passports German, and does the other spouse have the same nationality?

Two groups of cases lead to two entirely different answers.

Where nationality matters at all

Before choosing between two passports, look at where nationality plays a role in the proceedings at all. It decides less often than most people assume.

For jurisdiction, nationality is one of several grounds of equal rank. The habitual residence of both spouses is enough on its own, and where it exists, passports no longer matter.

For the applicable divorce law, nationality comes third, after the spouses’ shared residence and their last shared residence. It only matters if neither of those applies.

For matrimonial property, it counts only if the spouses never had a shared residence after the wedding.

As a rule of thumb: if both spouses live here, the question of passports is mostly academic. It becomes relevant as soon as you live in different countries, and that is exactly when it gets difficult.

Only foreign passports: the closest connection decides

If someone holds several foreign nationalities but not German nationality, the one that counts is the nationality they are most closely connected to Art. 5 (1) sentence 1 EGBGB. Courts usually measure that by habitual residence and the course of the person’s life so far.

A nationality that exists only on paper takes second place. Someone with an Italian and an Argentinian passport who has lived in Frankfurt for twenty years will, by this measure, usually be treated as Italian, provided the ties to Italy are stronger.

A German passport displaces the others, almost always

Things are different as soon as German nationality comes into play. By law, it takes precedence over any other nationality, however close the person’s actual ties to the other country Art. 5 (1) sentence 2 EGBGB.

Someone who has lived in Canada since birth and has never been to Germany, but who is German through a parent, is still German under German conflict-of-laws rules. This blanket rule reaches its limit when the second nationality is that of another EU member state. A widely held view among legal scholars is that automatic precedence for German nationality then violates the EU ban on discrimination. In their view, it does so where it overrides the EU nationality the person actually lives by Art. 18 TFEU. Germany’s Federal Court of Justice has left this open BGH, decision of August 26, 2020, XII ZB 158/18. If a court follows this view, the closest connection counts again.

The highest court has not yet settled the question. For someone who is German and French, or German and Spanish, the answer is therefore less certain than the wording of the statute suggests, and the individual situation is worth checking.

Where both spouses share the same second nationality

A third case concerns the couple rather than the individual. If both spouses hold the same second nationality, that nationality can establish the courts’ jurisdiction, whether or not it is the closest connection.

The Court of Justice of the European Union ruled on exactly this situation, under the regulation that preceded the current one CJEU, C-168/08, Hadadi. A Hungarian-French couple was allowed to rely on both nationalities and choose between Hungarian and French courts. The current Brussels IIb Regulation likewise bases jurisdiction on the spouses’ shared nationality without asking which nationality is the closest connection Art. 3 (b) Regulation (EU) 2019/1111.

Whether the same applies to the applicable law under Rome III is only partly settled. If German nationality meets that of a country outside the EU, German nationality keeps its precedence BGH, decision of August 26, 2020, XII ZB 158/18. With two EU nationalities, the question is open Art. 8 (c) Rome III Regulation.

For couples with a shared second nationality, a close look is still worthwhile. The choice between the courts of two countries determines how long the divorce takes and what it costs, and in the end it affects maintenance and assets too.

The one tangible advantage of the German passport

Beyond all the legal theory, there is one advantage you can measure in months.

If you base the application solely on your own habitual residence, you generally must have lived in that country for a year. For German nationals returning to Germany, that period is shortened to six months Art. 3 Regulation (EU) 2019/1111.

If you are coming back after years abroad and want to divorce here, that is the most tangible difference a German passport makes: you can file half a year earlier.

Which point in time counts

Nationalities change. People acquire them during the marriage and occasionally give them up, which raises the question of which point in time governs.

The answer depends on the set of rules. For jurisdiction, what matters is the moment the case is brought before the court. Matrimonial property, by contrast, is tied to the situation at the time of the wedding and stays fixed there.

If you were naturalized after ten years of marriage, that may have changed which courts have jurisdiction, but it changed nothing about your property regime. This mismatch in timing is one of the most frequent sources of error in binational cases.

What you should bring along

In first consultations, we almost always see the same pattern: people know their passports, but not how they acquired them. Yet half of the analysis depends on exactly that.

So be ready to say three things about each nationality: since when you have held it, how you acquired it (by birth, descent, naturalization or marriage), and whether you still hold it. Under some countries’ laws, an earlier nationality lapses automatically when you acquire a new one. If you do not know that, you may be counting on a passport that legally no longer exists.

Also note where you have lived and when, with years if possible. In most cases, those periods of residence decide more than the passports themselves.

What that means for your case

The number of passports alone says nothing about which law applies in the end. Nationality is only one of several connecting factors, and courts usually look at it after habitual residence.

Two further questions therefore come with it: where can you file, and which law will the court then apply? Two countries have jurisdiction: where do you file for divorce? and Under which law are we divorced: German or foreign? answer them.

If you married abroad, also read Can we divorce in Germany if we married abroad? Our page on international family law gives an overview of all four sets of rules.