Two possible countries: where should we file for divorce?

Several countries, the same right to hear your case

Unlike in purely German proceedings, European divorce law rarely offers only one competent place. Art. 3 of the Brussels IIb Regulation Regulation (EU) 2019/1111 opens several fora at once: the habitual residence of both spouses and the last joint one, as long as one of them still lives there. Then the respondent’s residence, and, on a joint application, the residence of either of them. On top of that comes the applicant’s own residence: after one year, or after only six months where they hold German nationality.

None of these fora takes precedence over the others. There is no ranking from which the “right” country could be derived, and that is the heart of the matter.

What “habitual residence” really means

Almost every forum hangs on habitual residence, and that is something other than the registered address. What is meant is the actual center of life, so where someone works, lives, sends their children to school and is socially rooted.

Two things follow from that. Re-registering alone shifts nothing, and a move abroad shifts the residence even where the German registration stays in place. Anyone who lives and works abroad has their habitual residence there, whatever the register says.

The place of the wedding and a passport on its own, by contrast, do not establish jurisdiction. Anyone who married in Italy and lives in Frankfurt is divorced by a German court.

First come, first served decides

Where two countries stand open on an equal footing, time counts. The court seised first keeps the case; where the other side seises a second court later, that court stays its proceedings and in the end declines jurisdiction Art. 20 Regulation (EU) 2019/1111. A lead of days can determine whether the divorce takes place in Frankfurt or in Madrid.

What matters is when a court counts as seised. In principle that is when the application reaches the court, provided the applying side does not then neglect what has to be done for service. Whoever files and then lets service drag loses the lead again.

Rushing into the race is nevertheless rarely the best idea: first look at the consequences, then file.

Why does the competent country influence the costs?

The competent court does not automatically bring its own law with it. Which divorce law applies is answered separately by the Rome III Regulation Regulation (EU) 1259/2010, and depending on the forum different legal systems can come into play; in detail on that, which law applies to the divorce?.

The place has an even clearer effect on the ancillary matters: maintenance follows the EU Maintenance Regulation, matrimonial property the EU Matrimonial Property Regulation, and both attach independently again. One country can measure post-marital maintenance generously, another let it run out early: the same marriage, two very different results.

The pension rights adjustment hangs on the German forum

One item is almost always forgotten in this calculation, and it is frequently the largest: the pension entitlements.

Hardly any other legal system knows the Versorgungsausgleich (pension rights adjustment). A Spanish or Italian court does not divide your German entitlements, because its law provides no institution for it. Anyone divorced abroad is left afterwards with a divorce in which old-age provision simply does not appear.

It is not lost through that. Where German law applies, the Versorgungsausgleich (pension rights adjustment) can be made up here in separate proceedings, and how that runs is set out under pension rights adjustment. Only it does not happen by itself, it costs a second set of proceedings, and the statements from the pension providers are harder to assemble years later.

With long marriages and unequal working lives, this single point can weigh more heavily than all differences in maintenance put together. It then speaks for the German forum, even where another country would be more generous on maintenance.

Outside the EU a different map applies

The Brussels IIb Regulation applies only between the member states, Denmark excepted. Where a third country is involved, for instance Switzerland, Turkey or the United States, German law decides on German jurisdiction, and § 98 FamFG holds a fallback rule ready for that.

In practice that means two things. First, there is then no European mechanism preventing parallel proceedings; two states can decide at the same time. Second, the question arises at the end whether the foreign decision applies here at all, and that is a procedure of its own.

What clients usually assume wrongly

Two assumptions come up again and again in the first conversation. The first is that whoever files gains an advantage in the outcome. That is not so. Filing decides the forum and not the result.

The second has more consequences. Many believe they have to choose between countries as between two providers, and assume it can be corrected later. In fact the choice is made when the application arrives, and it is practically impossible to take back. That is why the work lies in the days before.

Children follow a map of their own

Sorgerecht (custody) and contact do not follow the forum of the divorce. They attach to the child’s habitual residence, regardless of where the marriage is dissolved.

That separates the two questions cleanly, but it has an uncomfortable flip side. Anyone who moves abroad with the child shifts, after some time, the jurisdiction for everything concerning the child as well.

Anyone planning a separation with a move should therefore settle the questions about the children before the move.

Calculate before the first step

Which forum is the more favorable depends on the individual case, so on income, assets, periods of residence and on which claims are at stake. Four sizes are compared. The applicable divorce law with its separation periods. The measure and the duration of post-marital maintenance. The property regime with its treatment of real estate and business assets. And the question whether the Versorgungsausgleich (pension rights adjustment) runs along or has to be made up.

Where you hold several passports, another level comes on top: divorce with dual nationality. And where the marriage was concluded abroad, married abroad: divorce in Germany? clarifies what that means for jurisdiction and documents.