Same-sex marriage from abroad: getting divorced in Germany

Can a German court divorce a marriage concluded abroad?

Yes, a German Familiengericht (family court) also divorces a same-sex marriage concluded abroad. Since October 1, 2017, marriage in Germany has been open to couples of the same sex § 1353 (1) sentence 1 BGB. If your marriage is valid under the law of the country where you married, it is valid here as well Art. 17b (1) sentence 1, (4) EGBGB.

You do not need to register it in Germany for this. The court examines the marriage on the basis of the foreign marriage certificate, with an apostille and translation where required. Which papers it asks for is covered in Can we divorce in Germany if we married abroad?

When the German courts have jurisdiction

If you both live in Germany, the German courts have jurisdiction. The same applies if one of you is German § 98 (1) nos. 1 and 2 FamFG. The competent court is then usually the one where you live § 122 FamFG.

If only one of you lives here and neither of you is German, it gets narrower. It may then depend on whether one of your home countries would recognize the decision § 98 (1) no. 4 FamFG. Whether the European regulation on jurisdiction applies to your marriage is disputed. We examine these cases individually before the petition is filed.

Under which law you are divorced

Which divorce law applies is determined by the Rome III Regulation, as with any other marriage Art. 17b (4) sentence 1 EGBGB. If you both live in Germany, German law applies Art. 8 (a) Rome III. You then need the Trennungsjahr (year of separation), and the court does not ask about fault.

A choice of law is possible, notarized Art. 17b (5) sentence 1, Art. 46e EGBGB. The order of connecting factors is described in Under which law are we divorced: German or foreign? When the year is up is covered in Year of separation: when can you file for divorce?

Which property law governs your assets

If you married before January 29, 2019, your assets are governed by the matrimonial property law of the state in which the marriage was concluded and registered Art. 229 § 47 (2) EGBGB with Art. 17b (1) sentence 1, (4) EGBGB old version. Where you lived afterwards plays no role. For other marriages from that period, nationality usually decides.

That can make a big difference. A couple who married in Amsterdam in 2016 lived, under the Dutch law of the time, in a universal community of property. In principle, it also includes what each of you owned before the marriage. On divorce, this common property is divided, as a rule in half.

For marriages since January 29, 2019, the EU property regulation applies as it does to all marriages Art. 17b (4) sentence 2 EGBGB. What counts then is your first shared habitual residence after the wedding Art. 26 (1) (a) EuGüVO. If you married in Barcelona and then first lived in Frankfurt, the German Zugewinngemeinschaft (community of accrued gains) applies. How this works with assets in several countries is described in Foreign assets and accrued gains: which property law applies.

Apply expressly for the pension adjustment

Whether the court carries out the Versorgungsausgleich (pension rights adjustment) on its own initiative depends on the applicable law and your nationalities Art. 17b (1) sentence 2, (4) EGBGB. For couples where neither spouse is German, this is not certain. It then takes place on application if one of you acquired rights with a German pension provider during the marriage Art. 17b (1) sentence 3 EGBGB.

So file this application as a precaution together with the petition. Rights with foreign providers are not divided by the German court in any case. What happens to them is explained in Pension earned abroad: what happens in the pension adjustment.

What your home country makes of the divorce

Under German law, you are divorced once the decision becomes final. Whether your home country registers the divorce depends on its own law. If it does not even recognize the marriage, the question of the divorce often looks different there too.

We do not assess that ourselves. If you need the divorce in your home country, for instance for a new marriage or an inheritance, ask colleagues there early.

A registered partnership instead of a marriage

A partnership registered abroad is not a marriage. It is dissolved under the law of the state that keeps the register Art. 17b (1) sentence 1 EGBGB. A German registered life partnership can be converted into a marriage at the registry office § 20a LPartG.

So check the certificate to see what you entered into. Some countries have both side by side, and the name alone does not always tell you which form it is.

If there are children

With children, what matters is whether you are both legal parents. With two mothers, that is not a given in Germany. Under current German law, the wife of the mother usually only becomes the second parent through adoption §§ 1591, 1592 BGB.

If a child was born abroad with two parents on the birth certificate, things can be different. Parental responsibility, contact and child support depend on this. Clarify the question before the petition, because the petition names your children together § 133 (1) no. 1 FamFG.

The next step

Bring your marriage certificate, the date of the wedding, your nationalities and your places of residence since the wedding. From these, we can see which property law applies to you and whether the pension adjustment will run on its own. Our page on international family law describes the overall framework.

We advise in German, English and Spanish, by video as well. The first consultation costs up to €190 plus VAT, at most €226.10 in total. If we take on your case, this fee does not apply. How assets are divided on divorce is described on our page on the division of assets.