Whether a divorce requires a year of separation, whether it asks about fault, how long
maintenance flows and who keeps what of the assets – every legal order answers this
differently. The same marriage ends differently in two countries. Not a little
differently: structurally.
German law as a rule requires the year of separation before the divorce (§ 1566 BGB)
and does not ask about fault. Other legal orders know shorter periods or none at all –
or they carry fault elements right into maintenance. What sounds self-evident here is
negotiable there, and vice versa.
With assets the difference is starkest. The German statutory matrimonial regime – the
community of accrued gains – in the end equalises only the increase; other states
separate the assets entirely or pool them from the marriage onwards. For marriages
from 29 January 2019, the EU Matrimonial Property Regulation regularly freezes the
governing law at the first common residence after the wedding – a move years later
changes nothing about it.
Maintenance too changes its face with the place. Amount, duration and time-limit
follow the law designated by the Hague Maintenance Protocol – at the outset, the
habitual residence of the entitled person. If the entitled person moves, the
applicable law travels with them.
Connecting factors beat a sense of fairness.
With children a logic of its own applies: custody and contact questions attach to the
child’s habitual residence – not to the forum of the divorce and not to the parents’
tactics. Where the child lives is where the decision is made.
The race for the forum nonetheless has limits. A hasty petition in the wrong country
binds – the court seised first keeps the matter, even where it later turns out that
maintenance or matrimonial property run unfavourably there. Calculate first, then
file: this order rarely costs more than a few days and saves years.
From these differences follows the real advisory task: not to “win” a country, but to
find the combination of forum and law that fits your situation – and to secure it
before the other side creates facts. Sometimes a choice of law in the marriage
contract or still during ongoing proceedings suffices. Sometimes the earlier petition
decides.
The choice of law itself is not a handshake but a formal transaction: in Germany it
requires notarial recording; during ongoing divorce proceedings, a declaration
recorded by the court can replace this. Whoever makes the choice in the marriage
contract takes from future conflict its sharpest weapon – the race for the forum.
In a city like Frankfurt this is no niche topic. Binational marriages, arrivals and
departures, assets on two sides of a border – these constellations are part of the
firm’s everyday work here. The rules for them are harmonised across Europe and thus
plannable; those who know them can shape events rather than react.
