International family law

When a marriage with a foreign element ends, it raises two separate questions: which court may grant the divorce, and under which law? In a purely German marriage, the answers coincide. With a foreign element, they often do not.

Within the EU, the Brussels IIb Regulation (Regulation (EU) 2019/1111) determines jurisdiction. It applies to proceedings from August 1, 2022 and in every member state except Denmark. What counts above all is habitual residence, and alongside it nationality (Article 3). The place of the wedding is not on that list: a German court also divorces couples who married in Italy but live here.

Which divorce law applies, by contrast, is governed by the Rome III Regulation (Regulation (EU) No 1259/2010), in which not all EU states take part. If you have not chosen a law yourselves, it sets a fixed order, starting with the common habitual residence. So even two German passports do not automatically lead to German law.

What matters is which combination of forum and law fits your situation. A hasty petition in the wrong country binds you to the court there. Running the numbers first and filing afterwards rarely costs more than a few days.

We file the petition where it is more favorable for you and assign maintenance and matrimonial property law to the right regulation. The divorce proceedings themselves take place in one country only. You need a second adviser in the other country only if assets are located there or something has to be enforced there.

Plan ahead for the documents. A marriage certificate from a country outside the EU needs an apostille or legalization, depending on the treaty, and usually a certified translation. That takes weeks, in some countries months, so it belongs at the start.

Whether a divorce requires a Trennungsjahr (year of separation), whether it asks about fault, how long maintenance is paid and who keeps which assets: every legal system answers these questions differently. The difference is structural and not merely one of degree.

As a rule, German law requires the Trennungsjahr (year of separation) under § 1566 BGB and does not ask about fault. Other systems have shorter periods or none at all, or they let fault play a role all the way into maintenance.

With assets, the difference is at its clearest. The German Zugewinngemeinschaft (community of accrued gains) only equalizes the increase at the end. Other countries keep the spouses’ assets entirely separate or merge them from the wedding on. For marriages from January 29, 2019 on, the EU Matrimonial Property Regulation as a rule ties the applicable law to the first common residence after the wedding.

Where children are concerned, a logic of its own applies. Questions of parental responsibility and visitation attach to the child’s habitual residence, not to the forum of the divorce and not to the parents’ tactics. The courts where the child lives decide.

In an international case, divorce, maintenance, assets and children each have their own rules for jurisdiction and applicable law. That is the order behind the apparent confusion.

A divorce from another EU member state is valid here without any special procedure, except a divorce from Denmark. Outside the EU, by contrast, you usually need formal recognition by the justice administration of the competent German state before you count as divorced here and can marry again (§ 107 FamFG). In Hesse, the President of the Oberlandesgericht (Higher Regional Court) Frankfurt am Main decides on this. After recognition, the decision has the same effect as a German one. No procedure is needed if the divorce comes from the country of which both spouses were nationals at the time, and of no other country.

You can also conduct proceedings in Germany from abroad. Common German nationality is enough for jurisdiction (Article 3 Brussels IIb). A German who moves back can file at the new place of residence after only six months. Where no European rule applies, § 98 FamFG provides a residual jurisdiction. The proceedings do not require a residence in Germany.

We have foreign divorces recognized and apply for a Versorgungsausgleich (pension rights adjustment) that was left out.

In a city like Frankfurt, international family law is no niche subject. Binational marriages, people arriving and leaving, assets on two sides of a border are part of daily life here, and we advise in German, English and Spanish. Dietrich Karcher worked for years from an office in Granada and spent a long time in the United States.

Not every link to another country makes a divorce international, and some real foreign elements go unnoticed until they become expensive. As a rule, a divorce becomes international in one of these situations.

An hour at our office in Frankfurt or by Zoom, in German, English, or Spanish.