A cross-border aspect can arise in various ways. Spouses could have different citizenships, one spouse could live outside Germany, or marriage may have taken place outside Germany. International family law issue can also arise if the couple has children, rights to pensions, property or bank accounts and/or some business within more than one country.

Foreign residents who speak English, expatriates, and international couples and families shall find this information useful. Jurisdiction, applicable law, asset division, maintenance, pension equalization, and child-related matters do not always follow the same legal rules.

Here you can find an outline of the process of divorce in Germany and an overview of those aspects that are of particular relevance for foreigners and international families.

Key Points at a Glance

  • Divorce can be decreed in Germany even if the marriage occurred abroad.
  • Foreign nationals may apply for divorce in Germany once the requirements of German jurisdiction are fulfilled.
  • German family courts do not necessarily apply German divorce law simply because the divorce case occurs in Germany.
  • The Rome III Regulation determines which divorce law is used in many international divorces related to Germany.
  • Once the application of German divorce law is confirmed, the couple will usually have to go through a one-year period of separation.
  • Generally, foreign divorce orders represent the decisions that may not be recognized in Germany.
  • Property, maintenance in case of divorce, pension rights, and custody of children may be subject to different regulations.
  • First of all, the residence permit acquired because of marriage may change due to the separation; however, there still may be some independent ground for the residence permit.
  • Jurisdiction and recognition rules in the EU are mostly regulated by the Brussels IIb Regulation. German domestic law is implied if worldwide standards do not apply.

International Elements in a German Divorce

A divorce with an international element does not mean that the couple currently live in separate countries. The international elements come in when both spouses are foreigners in Germany or have different nationalities or when a German couple was living abroad most of the time of their marriage. An international element may be present when:

  • The couple have different nationalities.
  • The foreign couple is a resident of Germany.
  • If one spouse of the couple lives abroad.
  • The marriage has taken place outside Germany.
  • Though both parties are German, they live abroad.
  • One or both spouses have a right to a foreign pension.
  • The couple has property, bank accounts, or investments abroad.
  • Children are or have been living abroad.
  • A divorce process has been started abroad.

Such international connections can influence jurisdiction, application of law in marriage, acknowledgement of decisions made by court, service of legal papers, and implementation of money-related or child-related court orders.

The law firm with the name Vera Zambrano & Associates assists international clients in issues of jurisdiction, legal application in their marriage, foreign service or maintenance, asset partition, children’s place of residence and custody, paternity established in court, and acceptance of foreign decisions.

Divorce Jurisdiction in Germany

Let’s start considering whether a German family court is competent in the case of divorce filed by its citizens. In this sense, ‘competence’ means whether the court can carry out divorce proceedings, but not what law of the respective country is going to be applied.

In cases when couples are citizens of the European Union, there are general rules provided by the Brussels IIb Regulation regarding divorce and legal separation, annulment of marriage, and parental order. Those general rules are basically connected to the information about the habitual residence of spouses. A German court could possibly have jurisdiction in case:

  • Both spouses are residents in Germany.
  • The spouses lived together in Germany before separation, but one of them is still residing in the country.
  • The responding spouse is staying in Germany.
  • Both spouses applied for divorce together, but one of them is living in Germany.
  • The spouse who initiated the case has resided in Germany during the required period.
  • Both spouses are citizens of Germany.

The exact grounds on which the jurisdiction is determined depend on the factual circumstances at the moment when the court formally takes over the case. One’s registered address, temporary residence, and habitual residence are not necessarily equivalent. Habitual residence is mainly defined as the actual center of a person’s life depending on such factors as living conditions, occupation, family relations, and daily life.

In situations where European laws are not applicable, jurisdiction in Germany can be established based on Section 98 of the German law on family matters. For instance, jurisdiction can be established if at least one spouse has German nationality when he or she was married, both spouses are habitually residing in Germany, or there is another legally established connection with Germany.

Parallel Divorce Proceedings

In certain international divorces, jurisdiction may exist in more than one country, which also poses some risk for the start of divorce in two different countries at the same time.

Within the EU, the day on which the court is formally seized may play an important role. After the proceedings have taken place at one member state, the countries’ courts may postpone the proceedings until the jurisdiction of the first country is confirmed.

This is the reason behind the importance of good legal counsel when couples have connections with different countries. This is because the choice of a forum will have an impact on the proceedings, laws, spousal support, football pensions, disputed property, and recognition of the judgement abroad.

Applicable Law Under the Rome III Regulation

Once the jurisdiction is determined, the next question is which country’s law is to be applied by the German court in the divorce case.

Germany is a member of the Rome III Regulation, which defines the law applicable for divorce in the EU countries that have aligned themselves with this regulation. As such, a court in Germany can apply a foreign divorce law, or other EU countries can apply the German divorce law as well.

Choice of Law Between the Spouses

In certain cases, married couples can make the decision as to what law will govern their divorce depending on their situation. They can agree to choose:

  • The law applicable in the country of habitual residence of both spouses.
  • The law applicable in the last country of their habitual residence together, provided that one of the spouses is still living in that country.
  • The law of the country whose nationality one of the spouses holds.
  • The law applicable in the country where the divorce is taking place.

It should be noticed that the choice-of-law clause should comply with the legal requirements as to time, wording, and form. The validity of a clause in any agreement (prenuptial, postnuptial, or separation agreement) should not be presumed without checking its compliance with the standards.

Applicable Law Without an Agreement

In the absence of an appropriate choice made by the spouses, Rome III provides a sequential system for finding applicable law. The court usually considers:

  1. The law of the country in which the spouses are normally fully resident when the case is commenced.
  2. The law of the last habitual residence of the couple is if one spouse has not moved to another country.
  3. The law of their common citizenship.
  4. The law of the country in which the court dissolving the marriage is situated.

The important point here is that divorce court and divorce law refer to different issues.

Rome III, predominantly, deals with marriage dissolution itself but does not indicate the applicable law in case of custody, support, alimony, property division, pensions, inheritance, or name changes.

The Separation Year Under German Divorce Law

In cases where German divorce law is applicable, a marriage can only be terminated by a court, as German law operates on the premise of complete breakdown of the marriage.

In Germany, the breakdown of marriage is usually assumed when at least one of the following situations occurs:

  • The spouses have been living separately for not less than one year.
  • Both spouses want the divorce, or one spouse has filed for it and the other has no objections.

The separation year does not necessarily entail a separation of residence. It is enough for the spouses to no longer lead the life of spouses. In other words, this means that they do not share financial matters, food, household chores, sleeping arrangements, and any other aspects of their lives together.

It is important to note the necessity of showing the readiness to separate. It is also advised to keep a record of the separation date, since one spouse can disagree with the date of separation in the future.

If one partner does not want to divorce after a year, divorce can still take place if the party who initiated the divorce can prove that the marriage has irretrievably broken down. After three years in separation, German law assumes that the marriage has failed.

The divorce during the first separation year can take place only in exceptional circumstances. Regular marital problems, a new partner, or the fact that spouses live in different countries are usually not enough.

The Divorce Process in Germany

The process of divorce in Germany consists of several phases. The cases that involve divorce at the international level require more preparation since the court requires additional documents from abroad, certified translations, proof of residence, or information about the proceedings done in other countries.

The initial phase involves determining all significant international elements. The review process should involve:

  • The current and past places of residence.
  • The nationality of both spouses.
  • The date and place of marriage.
  • The date of the separation and its background.
  • The number and nationality of the children involved in the case.
  • Any existing documents indicating the decision of the parties regarding their marriage.
  • Any related legal actions in other countries.
  • Any existing divorce decisions from foreign courts.
  • Any financial property interests in Germany and other countries.
  • Any rights regarding pensions.
  • Residence and immigration status of both spouses.

Having a timeline is very important. Even an insignificant difference such as the moment of the change of the main residence can affect jurisdiction and law applicable to the case.

Selection of the Competent Court

As soon as the determination of international jurisdiction is made, the determining local family court in Germany has to be determined. This can depend on the residence of the minor children, the last place of residence of the spouses, and the residence of the responding spouse.

The fact that the couple may have gotten married in Berlin, Hamburg, or Munich does not mean that the divorce is to be initiated in that local family court.

Preparation of Documents

Documents ordinarily needed for divorce in Germany are:

  • Marriage Certificate
  • Passport or ID
  • Registration or residence certificate
  • Birth certificate of minor children
  • Evidence showing the separation date
  • Marriage or separation agreement
  • Pension certificate
  • Judgments

In some cases foreign public documents must undergo a German translation. Depending on the issuing country, an apostille or another type of authentication may be necessary.

Filing the Divorce Petition

A divorce petition has to be filed in the family court by a German lawyer. According to German law, the spouse filing the divorce must have a lawyer representing him/her according to the law.

The petition usually mentions information about the marriage, the separation, children involved, and other information needed for jurisdiction, applicable law, and all related proceedings.

If the other spouse resides outside Germany, the petition will have to be served according to European, international, or German laws. Wrong addresses, absence of translation, or incomplete service documents may delay the process a lot.

If the pension equalization regulations apply in Germany, usually the court will gather information about the pension rights of both spouses. There are other issues that can be covered, like maintenance issues, marital property, household items, the family home, and certain issues in connection with children. Whether those issues are covered or not along with the divorce will depend on the kind of claim and the procedure applied.

Court Hearing and Final Decision

Before making the divorce decision, family court usually hears both spouses in person. In situations where one spouse resides abroad, specific arrangements may need to be made in advance.

Once the divorce decision is rendered final, some further steps may need to be taken in another country. For example, the judgment rendered by the German court must, in some cases, be translated, certified, registered, or otherwise recognized in that country.

Foreign Marriages and Divorce in Germany

Usually, a marriage that was officiated abroad can be annulled by a German court if the marriage is valid and the German court has jurisdiction.

Although Germany usually does not require registration of all foreign marriages at the German Registry Office, in order for the marriage to be recognized as valid there, one has to prove that the marriage was solemnized in accordance with the local legislation.

In some cases, it’s important to obtain the following documents regarding a marriage certificate from abroad:

  • Certified translation.
  • Apostille.
  • Consular legalization.
  • Confirmation regarding the genuineness of the certificate.
  • Other documents proving the legality of the marriage itself.

Religious, customary, and informal marriage certificates will be analyzed more closely. They are valid in Germany only if they meet the requirements of the legislation, the authority of the entity that performed the marriage ceremony, and the necessary formalities.

People who got married in Denmark, the USA, India, or any other country should be aware that they might not need to go back there for a divorce procedure.

Recognition of Foreign Divorce in Germany

The process of recognizing foreign divorces in Germany is distinct from that of obtaining divorces in Germany.

Although a foreign divorce may be recognized in the country where it was granted, if the divorce is not approved in Germany, it may not have any legal implications in Germany. This results in many uncertainties regarding marital status, possibility of remarriage, questions of inheritance, tax issues, right of residence, and civil records.

Divorce Judgments From EU Member States

The divorce orders issued in the EU member states, as stated in the Brussels IIb Regulation, may be recognized automatically without special declaration of recognition. However, for administrative purposes, the divorce ruling and the certificate may still be required. Denmark has its own separate laws.

Divorce Judgments From Non-EU Countries

Divorces issued in non-EU countries often require recognition by means of a request under Section 107 FamFG. The request should be made with the justice department in the state where problems related to recognition arise. In Berlin, foreign decisions related to the question if a couple is married or if their marriage is dissolved must generally be recognized, although there are exceptions.

The documents you may need to present include:

  • An official copy of the divorce of your spouse outside of the country.
  • Confirmation that this divorce has become final.
  • The family certificate.
  • Proof of citizenship.
  • Confirmation of residence during the divorce in the other country.
  • Confirmation that your spouse has been duly notified.
  • Official translation of documents into German.
  • Obtaining an apostille or legalization if necessary.

There may be exceptions in regard to your country’s rulings regarding divorces if both parties were citizens of that country during the marriage. Be careful with the assumption of whether an exception applies.

Marital Property and Foreign Assets

The law governing the divorce process itself does not cover issues regarding property in marriage.

The division of international property requires the analysis of the matrimonial property regime. The European Regulation on Matrimonial Property contains its own rules for jurisdiction, applicable law, and recognition and enforcement for the participating states.

In applications of German property law, where married parties have not opted for any different solution, the default is the community of accrued gains, or Zugewinngemeinschaft, in German.

Under this principle:

  • Each spouse generally owns their own assets.
  • There is no automatic combining of assets.
  • The amount of the initial estate and final estate assets will be computed for both spouses.
  • The increase in wealth during the course of marriage is calculated.
  • The spouse whose wealth has increased more will make the equalization payment.

As for international property cases, they can include:

  • Real estate outside of Germany
  • Bank accounts in other countries
  • Shares of companies
  • Business interests
  • Trusts or foundations
  • Digital assets
  • Non-resident inheritances and gifts
  • Assets through family members or companies
  • All the property transferred before or during dissolution

Foreign assets may have to be disclosed and evaluated even when they cannot be transferred to Germany in accordance with rulings of German courts. The real estate is typically associated with the law governing the jurisdiction of the location of that property.

That’s why having a strategy that unifies legal procedures applied in both Germany and the country where the asset is situated would be optimal in these situations.

Pension Equalization in International Divorce

Pension equalization is a critical element of German divorce legislation. In German law it is referred to as Versorgungsausgleich. Pension equalization is meant to divide pension and retirement rights accumulated by spouses during their marriage. According to the German regulations, the spouses should divide the assets equally.

The following rights can be covered by the process of pension equalization:

  • -Typical German pension rights;
  • -Civil pensions;
  • -Occupational pension insurance;
  • -Professional pension insurance;
  • -Private pension insurance;
  • -Selected foreign pension rights.

Under German laws, pension rights can arise both within and outside the country. However, foreign pension rights can be more complicated for a judge since a pension provider outside of Germany may not be bound by the division order issued by German courts.

In some cases, it is possible to directly divide the right to a foreign pension. In other instances, a pension would have to be addressed at a later time via a compensatory claim. A separate equalization procedure can also be of importance after a divorce abroad, especially if a foreign ruling does not involve German pensions.

Spousal Maintenance and Child Support

Alimony after marriage, child support, and divorce itself are independent matters. In the US the term “alimony” is widely used, while in Germany and some European countries people usually say “spousal maintenance.” Whether maintenance can be received and when it ends depends on the laws of the state and the specifics of the marriage.

The Maintenance Regulation in the European Union regulates issues regarding jurisdiction, enforcement, cooperation of authorities, and recognition. Applicable law is primarily determined under the Hague Maintenance Protocol of 2007.

Some of the criteria that can be relevant in finding jurisdiction in any maintenance matter can be the following:

  • The resident location of the claimant.
  • Financial position of both partners.
  • The duties of child care.
  • The specifics of marriage in terms of duration and form.
  • Health and employment status.
  • Foreign tax and social security payments.
  • Income earned in different currencies.

Thus, it often happens that a divorce ruling in Germany will not provide an ultimate solution to all issues related to maintenance. Jurisdiction and law may differ for each concern.

Child Custody, Contact, and International Relocation

Divorce procedures do not automatically resolve every problem that needs to be dealt with in relation to children.

Child custody and parental responsibility on an international level are generally determined by the habitual residence of the child. Many international cases involving parental responsibility are governed by the Brussels IIb Regulation in the EU. The Hague Convention on the Protection of Children 1996 is applicable in the case of other member states involved in the process.

Child-related issues may refer to:

  • Parental responsibility.
  • The child’s primary residence.
  • Contact and visitation.
  • Schooling.
  • Medical decisions.
  • Passport and travel consent.
  • Relocation to another country.
  • Recognition and enforcement of foreign custody orders.

When parents still have parental responsibility, vital decisions have to be taken together. A permanent relocation abroad is usually regarded as a vital decision since it changes the residence, school, social situation, and relationship with the other parent of the child.

A parent has to obtain consent or a court ruling before moving a child across an international border. Unauthorized relocation or retention of a child may result in his or her international return procedure as prescribed under the Hague Child Abduction Convention and other existing legislation.

It is necessary to think twice before any parent moves to Germany, while the other parent makes plans to go back to his/her home country.

Residence Permit After Divorce in Germany

In case the residence permit is issued on the basis of marriage or family reunification, then separation affects the immigration status.

According to Section 31 of the German Residence Act, there is an independent right of residence in specific scenarios after the end of the marriage at the end of the marital cohabitation. The residence permit of a spouse may be extended independently if the necessary legal conditions are met. There may also be some special provisions in difficult situations.

Consequently, the individual situation depends on:

  • The type of residence permit.
  • The duration of the marriage in Germany.
  • The nationality of the spouse.
  • The date of separation.
  • The necessity of the situation.
  • Whether children are living in Germany on employment or some other basis to stay in Germany.

Family law and immigration law are interrelated. The date of divorce cannot be the only reason determining immigration status. Other regulations may apply for the family members of EU citizens.

Uncontested International Divorce

An uncontested international divorce may be quite simple if both spouses have agreed to end the marriage and have properly managed all the relevant issues related to the divorce.

The agreement might include:

  • The separation date.
  • Spousal maintenance.
  • Child support.
  • Parenting schedules.
  • International travel with the children.
  • Future relocation.
  • Matrimonial property.
  • Foreign real estate.
  • Business interests.
  • Pension rights.
  • Household property.
  • The family home.
  • Recognition and enforcement abroad.

Any agreement should take into consideration all relevant countries. What may be valid in Germany may need some formalities in any other country.

Separate legal advice might also be necessary when spouses have opposing interests or significant assets or live in different countries.

English-Speaking Divorce Lawyer in Germany

The international divorce lawyer has to pay attention to things other than the requirements of ending the marriage. The legal review should include German family law, EU regulations, an analysis of private international law, foreign systems of law, immigration law, and international agreements. Moreover, it should also assume coordination with foreign lawyers and authorities, pension institutions, translators, courts, and other responsible organizations.

Vera Zambrano & Associates is a specialist law firm based in Berlin, Germany, which renders assistance to clients on international family law issues. Among the firm’s services are legal advice relating to jurisdiction and laws applicable in family law cases; legal advice relating to support obligations and asset sharing; as well as legal advice on matters pertaining to child custody and residence, paternity, and foreign judgments. The firm represents clients both in Germany and abroad and is able to communicate with clients in several languages.

In the following situations, getting legal advice early is essential:

  • In the event that both spouses can sue in different countries,
  • When one spouse has started proceedings in another country;
  • In the event that children may go abroad,
  • When a foreign divorce must be recognized by courts in Germany,
  • When major assets are located abroad;
  • In the event that pension rights exist in more than one jurisdiction,
  • When the residence status depends on the marriage,
  • When court documents must be served in another country.
Explore our services International Divorce and Family Law in Germany Vera Zambrano & Associates advises and represents international clients in cross-border divorce, child custody, maintenance, foreign judgments and other international family law matters in Germany.

Frequently Asked Questions

Can foreign nationals obtain a divorce in Germany?

Certainly. Foreigners can divorce in Germany provided a German family court has international jurisdiction. Factors that may play a role are habitual residence, nationality, the place of residence of the other spouse, and the applicable EU or German regulations.

Is it possible to get a divorce in Germany even if the marriage took place abroad?

Yes, the fact that a marriage took place outside of Germany does not bar the possibility of a divorce in Germany. The only requirement is that marriage is valid according to German or international law and that the German court has competence. Some documents proving the marriage may have to be translated or legalized.

Does a German court have to apply German divorce laws in all cases?

No, jurisdiction is a separate question from applicable laws, because, according to the Rome III Regulation, the court may be obliged to apply the laws of another state.

Is a one-year period of separation obligatory?

In most cases, a one-year separation period is required if German divorce laws apply. In other words, divorce is only possible in case of exceptional hardship.

Is it possible to undergo separation in the same house?

It is certainly possible. In case the couple no longer functions as an intact family or as a couple and it is evident that both of them have made up their minds about separation.

Can I file for divorce in Germany if my spouse is overseas?

Yes, if the German court has jurisdiction over the case. Once the court has received the application, the other spouse must be duly informed in accordance with international regulations.

Do I have to hire a lawyer to file for divorce in Germany?

Yes, the person who files the petition must be represented by a lawyer on the German territory.

Are foreign divorce hearings automatically recognized in Germany?

Not always. EU member states’ divorce decrees are, in general, recognized without going through the process of confirmation. However, divorces from a number of third countries will require a formal confirmation procedure to take place under Section 107 FamFG.

What happens to property situated outside Germany?

Property held in other countries can play a significant role in the dissolution of marriage process. Each of the aspects, i.e., choice of law to be applied, ownership, valuation, and execution of judgments, must be examined separately.

Is it possible to take foreign pensions into account during divorce proceedings in Germany?

It may happen. German law governing pension equalization stipulates the right to pensions acquired outside Germany; although, taking into account the law of most of the countries, pensions acquired in these countries cannot be divided in the German court.

Can one parent take their children abroad for a permanent residence after a divorce?

If both parents have equal parenting rights, then generally he/she cannot take the children abroad for permanent residence without the consent of the other parent or the court decision. In international child custody cases, the location of the child is the most important.

Can I stay in Germany after the divorce?

Potentially yes. One can obtain an independent right to stay in Germany based on Section 31 of the Residence Act or other immigration regulations.