Under which law are we divorced: German or foreign?

Court and law are two different things

A Frankfurt court granting the divorce says nothing yet about which law it applies. Jurisdiction and applicable law follow separate rules: jurisdiction is governed by the Brussels IIb Regulation, the applicable law by the Rome III Regulation Regulation (EU) 1259/2010.

A German court applies Italian or Moroccan divorce law as a matter of course if the connecting factors point there.

Which law applies absent a choice?

If the spouses make no choice, Rome III follows a fixed order, the ladder of connecting factors: each rung applies only if the one above it does not. First comes the law of the country where both spouses are habitually resident when the court is seized. If they have no shared residence, their last shared residence counts, provided it ended no more than a year earlier and one of them still lives there. Next comes their shared nationality, and only as a last resort the law of the court seized Art. 8 Rome III.

A choice of your own: within a narrow frame

Instead of relying on the rigid ladder, you may also agree on the applicable law, though only within limits. You can choose among four legal systems Art. 5 Rome III: the law of your shared residence, the law of your last shared residence if one of you still lives there, the law of either spouse’s nationality, and the law of the court seized.

Such an agreement makes the outcome predictable, particularly for binational couples who would otherwise find out only at the end which law applies. In Germany, a choice made outside court proceedings must be recorded by a notary.

The choice is not tied to pending proceedings; you can make it years in advance in a marital agreement, where it is least influenced by the mood of the moment. And in Germany, it is still possible during the proceedings, in which case the court records it.

The choice covers only the divorce. If you also want to settle which law governs maintenance and matrimonial property, you need a separate agreement for each, and those follow different rules.

What the difference means in the outcome

So far, the connecting factors may sound like a formality. They are not, because legal systems really do differ on three points.

The separation period. German law as a rule requires the Trennungsjahr (year of separation) § 1566 BGB. Other legal systems make do with shorter periods or none at all. If you are in a hurry, this is the difference you will feel most.

The question of fault. Germany abolished fault-based divorce in 1977 and asks only whether the marriage has broken down. A number of legal systems still ask about fault, and some let it affect maintenance.

The requirements themselves. Some legal systems require a prior judicial separation; others allow divorce only after a waiting period that has no German counterpart.

A German court applies these rules if the ladder leads there. It does not ask whether the foreign law strikes it as sensible. The only limit is a result that would be manifestly incompatible with fundamental principles of German law Art. 12 Rome III.

Two traps on the ladder

The ladder looks mechanical, but cases often shift at two points.

The first is timing. What counts is the situation when the court is seized, not the situation during the marriage. A couple who lived in Germany for twenty years and moved to different countries during the Trennungsjahr (year of separation) no longer have a shared residence when the petition is filed; the ladder then moves down a rung.

The second is the one-year limit on the second rung. The last shared residence counts only if it ended no more than a year earlier and one of the two still lives there. If you let that year pass, you lose a connecting factor that may have been the more favorable one.

Neither can be fixed after the fact, but both can be planned for as long as no petition has been filed.

What does Rome III not govern?

The regulation governs only the divorce itself, meaning whether and how the marriage is dissolved. It does not cover the married name, matrimonial property, maintenance or any question of parental responsibility. Separate conflict-of-laws rules apply to those. For matrimonial property, that is the EU Matrimonial Property Regulation, which has its own connecting factors; see Foreign assets and accrued gains: which property law applies.

And Rome III applies universally: the designated law applies even if it is the law of a country that is not itself bound by the regulation Art. 4 Rome III.

A typical case

She is German, he is Spanish, and they married in Seville. For the first eight years of the marriage, they lived in Madrid; for the past four, both have lived in Frankfurt. Now they are separating, and both are staying in Frankfurt for the time being.

German courts have jurisdiction because both are habitually resident in Germany. German divorce law applies as well, through the first rung of the ladder, again because of the shared residence. The wedding in Seville plays no part in either question, and neither does his Spanish nationality, because the ladder never reaches the rung of shared nationality.

If he moves back to Madrid during the Trennungsjahr (year of separation), the picture changes. They no longer have a shared residence. Their last shared residence is Frankfurt, and it still counts as long as she lives there and the year has not passed. After that, the ladder moves down to the law of the court seized. If he then files in Madrid, Spanish law applies.

What surprises people in the first consultation

Two reactions come up almost every time. The first is disappointment that the passport does not decide. Many clients firmly expect to be divorced under the law of their home country and see it as a loss.

The second is the opposite. Clients who come from a legal system based on fault are visibly relieved to hear that German law does not ask who caused the separation. In binational cases, that one piece of information takes more pressure out of the conversation than anything else.

Almost nobody, by contrast, comes in asking about a choice of law. No guide puts it near the top, because it is about planning ahead rather than reacting, so the question usually comes up when it can no longer help much.

What follows from that

Because jurisdiction and law are determined separately, it is worth looking at both questions together before a petition is filed. Two countries have jurisdiction: where do you file for divorce? covers where to file. If you hold more than one passport, Two nationalities: under which law will we be divorced? adds another layer. If you married a same-sex partner abroad, Same-sex marriage from abroad: getting divorced in Germany explains what is different. Our page on international family law shows how all four sets of rules fit together: divorce, maintenance, assets and children.

If you want to make the choice of law as a precaution rather than in pending proceedings, a marital agreement is the place for it.