Both German, both abroad: getting divorced in Germany

Can you get divorced in Germany if you both live abroad?

Yes, if you both hold German citizenship. The German courts then have jurisdiction, no matter which country you live in or for how long Art. 3 (b) Regulation (EU) 2019/1111. The regulation requires no minimum period in Germany for this.

If you hold another passport alongside the German one, the German one still counts. What that means for choosing the court is covered in Two nationalities: under which law will we be divorced?

Which court in Germany has jurisdiction

If neither of you lives in Germany anymore, the local court of Schöneberg in Berlin has jurisdiction § 122 no. 7 FamFG. If one of you still has their habitual residence in Germany, it is the Familiengericht (family court) for that place.

Habitual residence means the center of your life, not the address you are registered at. Someone who has worked in Singapore for two years and is merely registered in Frankfurt lives in Singapore. Where the law firm is based makes no difference to jurisdiction; see Does my divorce lawyer have to be in my city?

Which law the German court applies

Without a choice of law, the German court applies the divorce law of the state in which you both live when the petition is filed Art. 8 (a) Rome III. For two Germans in New York, that is the law of the State of New York; in Singapore, it is Singapore law.

This can make things faster or slower. If you both live in Spain, Spanish law applies, and it does not require a Trennungsjahr (year of separation). Other legal systems set longer periods or ask about fault. The court also first has to establish the foreign law, often through an expert opinion § 293 ZPO. That costs time and money.

If the law of your country of residence does not provide for divorce or disadvantages one spouse on grounds of sex, the court applies German law Art. 10 Rome III. The order of connecting factors in detail is described in Under which law are we divorced: German or foreign?

How to choose German law

You can agree that German law applies, because one or both of you are German Art. 5 (1) (c) Rome III. The agreement has to be notarized Art. 46e (1) EGBGB.

Abroad, a German consular officer can do this. Their deeds are equivalent to those of a German notary § 10 (2) KonsG. Ask the embassy or consulate general for an appointment early. The choice is still possible during the proceedings, on the court’s record until the close of the oral hearing Art. 46e (2) EGBGB.

The pension adjustment depends on the divorce law

The court only carries out the Versorgungsausgleich (pension rights adjustment) on its own initiative if German divorce law applies Art. 17 (4) sentence 1 EGBGB. If the law of your country of residence applies, it only takes place on application. One of you must then have acquired rights with a German pension provider during the marriage, and the adjustment must be equitable Art. 17 (4) sentence 2 EGBGB.

For many couples, this is the most important reason to choose German law. Years with a German employer before moving abroad sit in the statutory pension and often in a company pension too. Rights with foreign providers are not divided by the German court in any case § 19 (2) no. 4 VersAusglG. What happens to them is explained in Pension earned abroad: what happens in the pension adjustment.

Property and maintenance follow their own rules

For marriages since January 29, 2019, property is governed by the law of your first shared habitual residence after the wedding Art. 26 (1) (a) EuGüVO. If you married in Germany and first lived here, the Zugewinngemeinschaft (community of accrued gains) remains. If you only married abroad and first lived there, that country’s matrimonial property law applies.

For older marriages between two Germans, the shared nationality decides, which means German law Art. 229 § 47 (2) EGBGB with Art. 15 (1), Art. 14 (1) no. 1 EGBGB old version. Details are in Foreign assets and accrued gains: which property law applies.

Maintenance is generally governed by the law of the country where the person entitled to it lives Art. 3 HUP. A choice of law is possible here too, under its own rules Art. 8 HUP. As a rule, the German court can decide on property and maintenance in the same proceedings.

How the proceedings work from a distance

All of the preparation can be done from abroad, by video, phone and email. The court serves the petition on your spouse abroad, and depending on the country that can take months. How to speed this up is covered in Spouse living abroad: how the divorce works in Germany.

The court summons you both to the hearing in person § 128 (1) FamFG. Plan a trip for it. If traveling is unreasonable, a requested judge can conduct the hearing instead § 128 (3) FamFG. Courts are reluctant to allow video participation from countries outside the EU. If your spouse agrees to the divorce, they need no representation of their own; see Consent to the divorce: giving, refusing, withdrawing it.

Is the German divorce valid where you live?

Within the EU, yes, except in Denmark, without any special procedure Art. 30 Regulation (EU) 2019/1111. Outside the EU, the law of your country of residence decides whether and how it recognizes a German divorce. We do not assess that ourselves. For this, you need advice from colleagues on the ground.

If you both live in another EU state, its courts have jurisdiction as well. The court seized first then keeps the case Art. 20 Regulation (EU) 2019/1111. How to weigh the countries against each other is described in Two possible countries: where should we file for divorce?

If only one of you is German

If only one of you is German and neither lives in the EU, a German court can still have jurisdiction § 98 (1) no. 1 FamFG. That does not apply, however, against a spouse who is a national of another EU state Art. 6 (2) Regulation (EU) 2019/1111. Things then get narrower, and the question should be settled before any step is taken.

The next step

Bring your marriage certificate, your places of residence since the wedding and a list of your pension provision, in Germany and abroad. From these, we can see which law would apply without a choice and whether a choice of law is worthwhile. 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 the divorce works online is described on our page on the online divorce.