Two countries have jurisdiction: where do you file for divorce?

Several countries with equal jurisdiction

Unlike in purely German cases, under European divorce law there is rarely only one court with jurisdiction. Article 3 of the Brussels IIb Regulation Regulation (EU) 2019/1111 gives several courts jurisdiction at once. The courts where both spouses have their habitual residence have jurisdiction, and so do the courts of their last shared residence, as long as one spouse still lives there. The respondent’s residence also counts and, for a joint petition, the residence of either spouse. The applicant’s own residence is enough as well: after one year, or after only six months for a German national. In addition, the courts of the country whose nationality you both hold have jurisdiction, even if neither of you lives there Art. 3 (b) Regulation (EU) 2019/1111.

None of these courts takes precedence over the others, so there is no “right” country.

What “habitual residence” really means

Almost all of these grounds depend on habitual residence, which is not the same as your official registered address. It means where your life is actually centered: where you work, live, send your children to school and have your social ties.

Two things follow. Updating your registration alone has no effect, and if you move abroad, your habitual residence moves with you, even if your German registration stays in place.

Neither the place of the wedding nor one spouse’s passport establishes jurisdiction on its own. A couple who married in Italy and live in Frankfurt are divorced by a German court.

First come, first served

If two countries are equally available, timing counts. The court seized first keeps the case. If the other spouse later goes to a second court, that court stays its proceedings and eventually declines jurisdiction Art. 20 Regulation (EU) 2019/1111. A lead of a few days can decide whether the divorce takes place in Frankfurt or in Madrid.

The key question is when a court counts as seized. In principle, that is when the petition reaches the court, provided the applicant then does what is needed for service. If you file and then let service drag on, you lose that lead.

Even so, a hasty petition is rarely the best idea. Look at the consequences first, then file.

Why does the choice of country affect the costs?

The court with jurisdiction does not automatically apply its own law. The Rome III Regulation Regulation (EU) 1259/2010 separately determines which divorce law applies, and depending on the court, different legal systems can come into play. Under which law are we divorced: German or foreign? explains this in detail.

Where you file has an even clearer effect on the ancillary matters. Maintenance follows the EU Maintenance Regulation and matrimonial property the EU Matrimonial Property Regulation, and each uses its own test to decide which law applies. One country may set post-marital maintenance generously, another may let it end early: the same marriage, two very different results.

Only a German court carries out the pension rights adjustment

One item is almost always forgotten when couples compare countries, and it is often the largest: the pension entitlements.

Hardly any other legal system has anything like the Versorgungsausgleich (pension rights adjustment). A Spanish or Italian court does not divide your German entitlements, because its law makes no provision for it. If you divorce abroad, you end up with a divorce that leaves your pensions out entirely.

The adjustment is not lost. If German law applies, the Versorgungsausgleich (pension rights adjustment) can be carried out later in separate proceedings in Germany; our page on the pension rights adjustment explains how. But it does not happen by itself, it requires a second set of proceedings, and the pension providers’ statements are harder to gather years later.

In long marriages with unequal careers, this one point can outweigh all the differences in maintenance put together. In that case, it favors filing in Germany, even if another country would be more generous on maintenance.

Outside the EU a different map applies

The Brussels IIb Regulation applies only among EU member states, except Denmark. If a non-EU country is involved, for instance Switzerland, Turkey or the United States, German law decides whether German courts have jurisdiction, and § 98 FamFG provides a fallback rule for that.

In practice, that means two things. First, no European mechanism prevents parallel proceedings; two countries can decide at the same time. Second, separate proceedings are needed at the end to establish whether the foreign decision is recognized here at all.

What clients usually assume wrongly

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

The second has bigger consequences. Many clients think they can choose between countries the way they would choose between two service providers, and assume the choice can be corrected later. In fact, the choice is made when the petition arrives, and it is practically impossible to undo. That is why the work happens in the days before filing.

A separate jurisdiction applies to the children

Sorgerecht (custody) and visitation do not follow the divorce court. Jurisdiction over them depends on the child’s habitual residence.

This keeps the two questions neatly apart, but it has an uncomfortable flip side. If one parent moves abroad with the child, after some time jurisdiction over everything concerning the child moves too.

If a move is part of your separation plans, settle the questions about the children before you move.

Calculate before the first step

Which country is more favorable depends on your circumstances: income, assets, periods of residence and the claims at stake. The comparison covers four factors. The first is the applicable divorce law with its separation periods, the second the amount and duration of post-marital maintenance. The third is the property regime and how it treats real estate and business assets. The fourth is whether the Versorgungsausgleich (pension rights adjustment) is carried out with the divorce or has to be done later. This comparison belongs before the first filing. The race to court cannot be undone later, but a few days of preparation can almost always be found.

If you hold more than one passport, another layer is added; see Two nationalities: under which law will we be divorced?. If you married abroad, Can we divorce in Germany if we married abroad? explains what that means for jurisdiction and documents.