International Family Law

Due to globalization and the increasing integration of Europe and the world at large, international family law is becoming ever more significant. This development gives rise to complex and far-reaching legal questions for partners of different nationalities and backgrounds — particularly regarding which legal system applies and which courts have jurisdiction in the event of a dispute, especially when the spouses do not share the same nationality, place of residence, or domicile, or if the marriage was contracted abroad.

HIn such cases, not only German regulations but also EU regulations and international treaties often apply.

Our services in international family law

We are particularly available to assist you in the following areas of international family law:

• Examination according to the conflict-of-laws rules of the private international law of the states concerned to determine jurisdiction and applicable law.
• Enforcement of family law claims such as alimony, division of assets, etc., also across borders.
• Legal advice and representation in international matters concerning child custody and residence.
• Advice and representation in matters of parentage and paternity.
• Clarification of the recognition of foreign court decisions in Germany or vice versa.
• Prenuptial agreements for spouses with different nationalities and changing places of residence, including a provision for a favorable choice of law.

Parental responsibility

In the area of parental custody, the Hague Child Protection Convention (the so-called KSÜ) has applied since January 1, 2011. German private international law is superseded by the Hague Child Protection Convention within its scope of application. For the allocation and termination of parental responsibility by operation of law, the law of the state in which the child has his or her habitual residence is decisive. The law of the state in which the child has his or her habitual residence is also decisive for the allocation of parental responsibility by agreement or unilateral legal act. If the child changes his or her habitual residence, parental responsibility under the law of his or her original habitual residence continues to apply under the Hague Child Protection Convention.

This means that unmarried parents whose joint child has lived in a country where they are granted joint parental responsibility by operation of law will retain that joint parental responsibility even if the child now resides in Germany — and this applies even in the absence of any formal declarations of custody.

Maintenance

For support obligations in cross-border cases, the EU Maintenance Regulation and the 2007 Hague Protocol have applied in Germany since 2011. The Hague Protocol determines which national law is to be used as the basis for regulating support obligations. The EU Maintenance Regulation contains provisions regarding which court has international jurisdiction. Here, too, the current legal situation now allows agreements between the parties involved. Under certain conditions, the parties may mutually agree on which national law should apply and which court should make the decision.

Divorce and Separation

For divorce and separation, the Rome III Regulation applies within the European Union Member States. It determines which national law is applicable to a divorce in an international context. Previously, under German private international law, the primary criterion was the spouses’ nationality. Now, the decisive factor for determining the applicable law is the spouses’ habitual residence.

Furthermore, this new legal framework provides spouses with additional flexibility. They may choose the applicable law for their divorce even during the divorce proceedings. These new options can be effectively utilized within the context of a prenuptial agreement or a divorce settlement agreement. Bilateral agreements between individual states must also be taken into account.

Acknowledgment, challenge, and establishment of paternity

This is governed by the law of the country in which the child has their habitual residence (Art. 21 of the Introductory Act to the German Civil Code – EGBGB). For example, if a child has their habitual residence in Germany, paternity can be acknowledged under German law — even if the father lives abroad. In such cases, the father may acknowledge paternity in accordance with international family law before a consular officer at a German embassy. The required consent of the mother (and, if applicable, the child) may then be given in Germany in the appropriate legal form. The acknowledgment and the declaration of consent do not need to be made before the same authority.

Moreover, an acknowledgment or, for example, a challenge of paternity may also be carried out under the law of the country to which the respective parent belongs. For instance, if the father is a French citizen, the acknowledgment of paternity may also be made in accordance with French law.

If the child’s mother is married, the law of the state to which both spouses belong or last belonged during the marriage may also apply to the acknowledgment of paternity, contesting paternity, or establishing paternity, provided that one of them still belongs to that state. Otherwise, the law of the state in which both spouses have their habitual residence applies—or, alternatively, the law of the state with which the spouses are otherwise jointly most closely connected.