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Under which law are we divorced: German or foreign?
That a German court pronounces the divorce does not mean that German law applies. Which legal system applies is answered by a regulation of its own, and within limits you may even choose it yourselves.
Karcher Rechtsanwälte in Frankfurt am Main, Germany, focusing on uncontested divorce and international family law. Advice in German, English and Spanish.
Part of our guide International family lawCourt and law are two different things
That a Frankfurt court pronounces the divorce says nothing yet about the law under which it does so. Jurisdiction and applicable law follow separate rules: the one the Brussels IIb Regulation, the other the Rome III Regulation Regulation (EU) 1259/2010.
A German court applies Italian or Moroccan divorce law without further ado where the connecting factors lead there.
Which law applies absent a choice?
Where the spouses make no choice, Rome III works its way down a fixed order. What counts first is the law of the state in which both are habitually resident at the time the court is seised. Where there is no such joint residence, the last joint one counts, provided it is not more than a year ago and one of them still lives there. After that the joint nationality applies, and only lastly the law of the court seised Art. 8 Rome III.
A choice of your own: within a narrow frame
Instead of the rigid ladder you may also agree on the applicable law, though not freely. Four legal systems are open to you Art. 5 Rome III: that of your joint residence, that of an earlier joint residence, the nationality of one spouse, and the law of the court seised.
Such an agreement creates predictability, particularly for binational couples who are otherwise surprised by which law applies in the end. In Germany it becomes effective only where it is recorded by a notary.
Two things matter here. The choice is not tied to pending proceedings; it can be made years in advance in a prenuptial agreement, and there it is least influenced by the mood of the moment. And in Germany it remains possible during proceedings as well, then recorded by the court.
What the choice cannot do: it covers the divorce alone. Anyone who also wants to bind maintenance and matrimonial property needs separate agreements for each, following different rules.
What the difference means in the outcome
So far the connecting factors sound like a formality. They are not, because the legal systems genuinely part company at three points.
The separation period. German law as a rule requires the Trennungsjahr (year of separation) § 1566 BGB. Other legal systems manage with shorter periods or none at all. For anyone in a hurry, that is the most tangible difference.
The question of fault. Germany abolished it in 1977 and asks only whether the marriage has broken down. A number of legal systems still ask about fault, and some let it carry through into maintenance. For one side that can be the decisive point.
The requirements as such. Some legal systems demand a prior judicial separation, others allow the divorce only after a waiting period that has no German counterpart.
A German court applies these rules where the ladder leads there. It does not examine whether the foreign law strikes it as sensible. The limit lies only where the result would be manifestly incompatible with fundamental principles of German law Art. 12 Rome III.
Two traps on the ladder
The ladder looks mechanical, but it has two points at which cases regularly shift.
The first is timing. What counts is the position when the court is seised, not the one during the marriage. A couple who lived in Germany for twenty years and moved to different countries during the year of separation no longer have a joint residence when the application is filed; the ladder then slips down a rung.
The second is the one-year limit on the second rung. The last joint residence counts only where it is no more than a year ago and one of the two still lives there. Anyone who lets that period pass loses a connecting factor that may have been the more favourable one.
Neither can be created retroactively, and both can be planned for as long as no application is running.
What does Rome III not govern?
The regulation decides solely on the divorce itself, so on whether and how the marriage is dissolved. What stays out of it is the name, the matrimonial property, maintenance and all questions of parental responsibility. Conflict-of-laws rules of their own apply to those. For matrimonial property that is the EU Matrimonial Property Regulation, which attaches independently; on that, foreign assets in the equalization of accrued gains.
And Rome III applies universally: the law designated is applied even where it is that of a state which does not know the regulation itself Art. 4 Rome III.
A case of the kind that comes up often
She is German, he is Spanish, and they married in Seville. The first eight years of the marriage the couple lived in Madrid; for the past four both have lived in Frankfurt. Now they separate, and both stay here for the time being.
German courts have jurisdiction, because both are habitually resident here. German divorce law applies, by way of the first rung of the ladder, likewise because of the joint residence. The place of the wedding plays no part in either, and neither does the Spanish nationality, because the ladder never reaches the rung of joint nationality.
If he moves back to Madrid during the year of separation, the picture changes. The joint residence falls away, the last joint one is Frankfurt and still counts as long as she lives there and the year has not passed. After that the ladder slips further, and Spanish law is suddenly in play.
What surprises people in the first conversation
Two reactions come up almost every time. The first is relief that the passport does not decide. Many firmly expect to be divorced under the law of their home country and experience it as a loss.
The second is the opposite. Anyone coming from a legal system with a fault principle hears with visible relief that German law does not ask who caused the separation. In binational cases that single piece of information takes more pressure out of the conversation than anything else.
What almost nobody brings along, by contrast, is the question of a choice of law. It appears in no guide near the top, because it is provision rather than reaction, and so it usually gets asked 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 an application is running. Where to file is dealt with by which country has jurisdiction for the divorce?; where you hold several passports, divorce with dual nationality comes on top. The connection between all four sets of rules, that is divorce, maintenance, assets and children, is shown by our page on international family law.
Where you want to make the choice of law as a precaution rather than in pending proceedings, the prenuptial agreement is the place for it.
Whether a choice of law is worthwhile depends on which legal system fits your situation better: in periods of separation, in any element of fault and in the ancillary matters. That can be calculated through in advance, as long as the choice is still open. Advice is given in German, English and Spanish; the proceedings are conducted by Mieke Karcher, attorney at law.
Attorney at law · focus on family law
Admitted since 2010, more than fifteen years of experience in advising and representation. The contact for new instructions at Karcher Rechtsanwälte in Frankfurt-Gallus.
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.