My divorce comes from abroad: does it apply in Germany?

Two routes that need no application

Not every foreign divorce has to go through a procedure. Where the judgment comes from another EU member state, Denmark excepted, the Brussels IIb Regulation applies Regulation (EU) 2019/1111: the divorce applies here directly, without separate recognition. The same route is opened by the home-state case: where a court of precisely the state whose nationality both spouses alone held at the time of the decision granted the divorce, the procedure likewise falls away § 107 FamFG.

Everything else needs a declaratory decision

For divorces from all other states, from Turkey through the United States to Thailand, German law requires formal recognition before the divorce takes effect here. Until then you remain married in the eyes of the law.

A new marriage would be void, the tax office keeps you in joint assessment, and in a case of succession the former spouse still counts as such. What decides it is an administrative act, not a second court judgment.

What the decision actually does

The declaratory decision binds every German court and authority § 107 Abs. 9 FamFG. The register office, the tax office, the pension insurance and the probate court have to accept it and may not examine the question a second time.

That is precisely where its value lies. Without it, every authority decides the preliminary question for itself, and each one separately. The result is the state of affairs those affected find absurd. The register office treats you as married while the tax office has long since assessed you separately, or the other way round. The decision ends that inconsistency with a single sheet of paper.

The reverse finding exists as well. Anyone who wants to know whether a divorce is precisely not capable of recognition, perhaps because they want to rely on the marriage continuing, can have that settled in the same proceedings.

How do I apply for recognition?

The application is decided by the justice administration of the federal state in which you are habitually resident; in Hesse that task lies with the Oberlandesgericht Frankfurt am Main (higher regional court). Where both spouses live abroad and the new marriage is to take place in Germany, the justice administration of the state where it is to be concluded decides.

Entitled to apply is anyone with a legal interest, as a rule one of the divorced spouses. The future spouse can be entitled too, where the marriage depends on the open question.

Three things have to be submitted, and in practice all three regularly cause the delay.

• The complete decision with a note of finality. Neither the operative part alone nor an extract from the civil status register will do. Without the note confirming that the decision is final, the justice administration goes no further.
• The authentication from the state of origin, that is the apostille for the states of the Hague Convention of 1961, otherwise legalization by the German mission abroad. Which of the two routes applies is determined by the state of origin, not by the authority here.
• Translations by a person sworn in Germany. A translation prepared abroad is often impeccable in substance and is nevertheless refused here.

What the procedure costs and how long it takes

The fee depends on your income and sits within a graduated range; a waiver is possible where income is low.

The duration depends above all on how complete the application arrives and on whether the justice administration has to make enquiries in the state of origin. Count in months.

Anyone planning to remarry should therefore start early. The register office presupposes recognition, and a wedding date cannot be pushed through against pending administrative proceedings.

The four grounds on which recognition fails

What is examined is not whether the foreign court decided correctly. What is examined are four obstacles § 109 FamFG, and only those.

Jurisdiction. Was the deciding state competent at all, seen from here? A court to which neither residence nor nationality established a connection does not carry the decision.

The right to be heard. Was the other spouse involved in good time and in a way that allowed a defense? Service that never reached them is the most common point of attack.

Irreconcilability with another decision. Where a German decision, or one recognized here, already exists in the same matter, that one prevails.

Public policy. Where the result is manifestly incompatible with fundamental principles of German law, recognition does not follow. The textbook case is unilateral repudiation without any participation by the wife.

What matters about this list is what does not appear on it. That another country works with shorter separation periods, asks about fault or measures maintenance differently is no obstacle. Foreign law remains foreign law, and it is not converted into German standards here.

The private divorce is a case of its own

Not everywhere is a divorce pronounced by a court. In a number of legal systems a unilateral declaration suffices, which an authority or a religious court then merely registers, the talaq being one example.

For these cases the Rome III Regulation does not apply, according to the case law of the Court of Justice of the European Union. It covers only divorces in which a court or an authority is constitutively involved.

In practice such divorces run through German conflict of laws rules. In the recognition procedure they are looked at more strictly, above all against the standard of the right to be heard. Anyone with such a case does better to settle recognition here before hanging decisions on it. Registration in the state of origin does not carry that weight.

What recognition does not bring with it

The decision establishes that the marriage is dissolved. It says nothing beyond that, and three follow-up questions hang on it that nobody handles by themselves.

The pension rights adjustment. Hardly any other country knows it, and a foreign court does not divide your pension entitlements. It is not lost for that reason: where German law applies, a German family court can decide on it in separate proceedings. On that, our page on the pension rights adjustment. No deadline runs, but the evidence gets harder to assemble with the years.

The assets. Where the foreign decision is silent on matrimonial property, the question is open rather than settled; which property law governs at all is set out in foreign assets in the equalization of accrued gains.

The name. Whether you can drop the married name, and in what form, follows German law on names and is declared at the register office rather than in the recognition procedure; see your name after the divorce.

What it almost always comes down to in the first conversation

The legal question is rarely the problem. What delays proceedings is paperwork. A judgment without a note of finality, an apostille that the state of origin does not provide for at all, a translation prepared there that does not count here.

Anyone who received the papers years ago and has not looked at them since should get them out before the meeting. Obtaining a missing confirmation from abroad often takes longer than the recognition procedure itself.

Where the divorce is still ahead of you, by contrast, the prior question is where to file at all: which country has jurisdiction? and which law applies?. The overall context is given by international family law.

Legal notice: This article is provided for general information and does not replace legal advice in an individual case. Any laws, deadlines and amounts mentioned reflect the state of affairs at the time of publication and may change. A binding assessment requires a personal consultation.