Recognition of Foreign Divorce in Germany: International Divorce Guide

The necessity to obtain recognition of foreign divorce depends on multiple factors. Importantly, the nation where the divorce took place as well as the nationality of the parties, the starting date of the divorce process, and the nature of the judgment affecting the marriage play their role. In fact, the divorce granted in Denmark may not be accepted in the same way as the divorce received in one of the EU member states or far-from-EU countries.

According to the German law of Section 107 FamFG, there are special rules for all types of foreign judicial decisions. Nevertheless, there are important exceptions. Therefore, we stress the importance of legal analysis in advance in order to avoid situations in which marriages have been terminated abroad but continue to be recognized as legal in Germany.

Legal Basis for Recognition of a Foreign Divorce

Section 107 of the German Act on Proceedings in Family Affairs and in Non-Contentious Jurisdictions, known as FamFG, handles the recognition of some divorce rulings made abroad. Under certain circumstances, a divorce ruling made in another country can be recognized for German purposes only when the competent authority of the State Justice Administration indicates that certain legal preconditions have been complied with.

This provision is not limited to conventional judgments of divorce made by a court. It can apply to rulings on the annulment or validity of a marriage, as well as other sorts of foreign rulings on the existence of a marriage. Furthermore, depending on the country and its legal regulations, some administrative methods of divorce may also be subject to the German rules on recognition.

So in this sense, the process of recognizing foreign divorces differs from that of conducting the original divorce itself. The foreign court or authority has already dissolved the marriage under its law. Germany does not perform the divorce again. The authorities in Germany will look at whether the foreign decision can be accepted in their legal system. Section 109 of the family court’s law points to important grounds that may lead to the rejection of recognition. However, it does not permit a general retrial of the foreign divorce case.

Foreign Divorces With and Without Formal Recognition Proceedings

When deciding whether to look for recognition of the foreign divorce in Germany, you should pay attention to the place of obtaining a divorce.

Judicial acts that start from August 1, 2022, are regulated by the Brussels IIb Regulation, and these regulations are applicable among the EU Member States that participate therein. According to this rule, a divorce decree rendered by one of the participating states should be recognized in another participating member state without an additional recognition process in the latter. Denmark is not included in this ruling. As for the previous judicial acts, whether some transitional rules and the Brussels IIa Regulation still apply.

This difference is practical, and one cannot say that every divorce is subject to a recognition procedure in Germany since a foreign country has granted it. At the same time, it would be inappropriate to believe that every foreign divorce is effective in Germany automatically without any check with regard to the rules applicable there.

Home-Country Decisions as an Important Exception

Section 107(1) of FamFG contains yet another relevant exception. If the marriage was terminated by a ruling or decision of a court or administrative body in a country where both parties were nationals at the time of the divorce, a formal recognition by a German State Justice Administration might not be necessary under certain circumstances.

However, it is essential to mention that although this exception is usually referred to as a home-country exception, it should be treated with caution. Multiple nationality could affect the outcome of the consideration. This is particularly true for situations in which one spouse had citizenship in another state at the time of divorce. Therefore, it cannot be inferred automatically that the home-country exception applies.

Competent Authority in Germany and Berlin

To apply for the recognition of foreign divorce, the concerned party needs to learn which German State Justice Administration has jurisdiction over the case.

According to Section 107 FamFG, jurisdiction is determined by the place of residence of both of the former spouses. If, for example, one of the spouses lives in Berlin, Berlin’s justice authority will recognize the foreign court ruling in matrimonial matters.

If neither of the former spouses resides in Germany, but one of the couple is intending to remarry there, jurisdiction is determined by the federated state where the new marriage is to take place. If there are no ties with Germany, and thus no other bases for jurisdiction exist, Berlin State Justice Administration may be competent. Hence, the mere fact of the location of the marriage does not indicate the authority responsible for granting recognition of the foreign marriage.

Required Documents for Foreign Divorce Recognition

Documents required for the recognition of a divorce decree issued abroad depend on the country of the decree and the form of the decision. German authorities usually require sufficient documents confirming marriage, as well as establishing that the marriage was dissolved in a legal way and identifying the people involved with respect to their identity and citizenship.

The standard types of documentation are:

• An application for acknowledgment of the foreign divorce ruling filled and signed
• The certified copy of the divorce order or the copy meeting other legal requirements
• The evidence that the divorce ruling is final and benefits from legal force, unless stated otherwise in the ruling
• The marriage certificate with regard to the annulled marriage
• Documentary evidence of the nationalities of both parties involved
• Documentary evidence of residential addresses of both parties involved
• The apostille, legalization, or other type of confirmation if needed
• Translations of the documents into German if required
• The powers of attorney if the submission is done through the representative.

The German court, as well as other authorities in Berlin, may require the divorce decree, marriage documents, documents proving the citizenship of the spouses, translation of documents, and other documents depending on the case.

Often the lack of the necessary documents or their improper nature gives rise to additional demands from the authorities. This happens especially often in regard to divorce decrees issued in the past when a full decree, a separate paper proving its finality, or additional documents proving the civil status may be required.

Finality of a Foreign Divorce Decree

In order to be able to recognize the foreign divorce decree, it is necessary to show that the divorce has been finalized. German authorities want to ensure that the proceedings abroad have been completed and that the marriage is dissolved according to the law of the respective country.

The final divorce decree can be proved in different jurisdictions in various ways. For example, in some countries it is enough to check the contents of the decree itself, mentioning that it is final. In this case, the issuing authority may issue a separate document confirming that there is no possibility of appeal.

This is the reason why it may be insufficient to present just one page of an overseas ruling because decisions are made up of several sections. The operating part, motivation, court stamp, as well as factual information and various certificates, might also be significant. Therefore, one who wants to validate a foreign divorce ruling in Germany has to make sure to learn beforehand how the divorce country certifies that the ruling is final.

Apostille, Legalization, and Authentication

One more issue that arises frequently in international divorce cases is the authorization procedure. In searching for information on a foreign divorce decree that needs to be recognized in Germany, various queries such as “apostille for divorce decree,” “divorce decree with apostille,” “document legalization,” etc. are frequently made.

Generally speaking, an apostille is a tool that is used to establish the authenticity of a public document for international usage among countries that are a part of the Hague Apostille Convention. Depending on the document, an apostille can confirm the authenticity of a person’s signature, the official capacity of the person who signed the document, or the authenticity of an official seal.

Nevertheless, getting an apostille does not imply that the divorce is recognized in Germany. It can be useful to establish the authenticity of documents, but it does not always help to solve the issue of whether the divorce as claimed in the specific document is valid in accordance with German legislation.

Based on the country of origin, legalization, consular authentication, or document verification procedures, in other words, a requisite of evidence may need to be applied. In addition, the German authority may request some other papers if there are doubts about the authenticity, validity, or legal effects of the foreign decision.

Certified Translation of the Foreign Divorce Decree

Foreign language documents, in most cases, have to be submitted with German translation, as it is particularly relevant to a foreign divorce decree, law statements verifying the ruling, wedding certificates, and some other documents related to court issues or civil status matters.

Moreover, a translated divorce decree should provide a professional and precise reflection of what the respective document contains. In some instances, more complex cases require precise identification of such elements as name and surname, file number, date, official seals, and substantial finality declaration.

The German authorities might demand translations from the original language into German from authorized and certified translators. The requirements vary with languages, nations, documents, and authorities. Similar to an apostille, translations do not replace the process of recognition but help the German authorities understand the substance of the foreign ruling better.

Foreign Divorce Recognition Process in Germany

The international divorce recognition process begins with one fundamental question: is the formal recognition necessary? It should be checked, especially in relation to EU divorces and any possible decisions made in the home country of applicants, because if there is no need for a separate procedure, then there is no point in starting it.

If the formal recognition is needed, the subsequent step is to find the relevant State Justice Administration, which has authority, and file the application along with the necessary documents.

Authority usually starts by determining if the file is complete and whether the presented document can be used for the legal judgment. Missing proof of the finality of a decision, incomplete rulings, unclear identification data, lack of translation, or authentication problems may lead to a request for additional documents.

The authority verifies whether the foreign court’s decision can be recognized under German law. Depending on the situation, the previous partner may also be given the opportunity to give a comment. One important issue is whether the partner was duly involved in the foreign judicial process and given enough notification to be able to protect his rights.

If all the legal criteria are met, the recognition is officially accomplished. In accordance with Article 107(9) FamFG, the conclusion regarding the recognition criteria is binding on the German courts and authorities.

Grounds for Refusing Recognition Under German Law

Germany cannot recognize all foreign divorce decrees. Section 109 FamFG mentions the conditions under which the country may refuse to recognize a divorce decree.

One of the criteria is if the foreign court had international jurisdiction according to German law. In addition, the fair process of all the parties involved must be taken into account.

If one spouse did not participate in the proceedings, the authority must check whether the latter received all the necessary information to make a response to the divorce or at least understood the situation. Generally speaking, the spouse who did not participate in the proceedings must have been given a real chance to exercise all his or her rights.

There can also be situations when the foreign decision does not match the German award or another foreign award that is supposed to have the priority.

To conclude, it should be noted that a recognition decision cannot yield an outcome that is manifestly against the basic principles of German law. This principle is known as “ordre public,” which preserves the basic standards related to constitutional, procedural, and substantive elements in the law. However, this does not suggest that the German authorities have the right to repeat the process of divorce sentencing. Article 109(5) FamFG states that “no question arises as to whether the foreign court applied the law correctly.”

Religious, Administrative, and Private Forms of Divorce

International family law may involve family law cases that do not necessarily entail a decision made by a court of law.

Some jurisdictions allow an administrative body to put an end to a marriage. Other jurisdictions might recognize other types of divorce, such as religious ones or divorces completed outside of the judicial system. Thus, one might say that the first question to be clarified in Germany is that arising from the definition of the term ‘decision’ as given in Article 107 FamFG and whether any judicial or official authority was involved in the divorce process.

As a result, German authorities may have to review some administrative decisions, divorces, or some religious ways of marriage termination as well apart from normal court decisions. These cases are more complicated than recognizing a standard foreign divorce decree since they involve the combination of private acts and legalization.

Married Abroad and Divorcing in Germany

Recognizing a foreign divorce is not the same as asking the question of whether a marriage abroad can be dissolved by a German court.

If you are married abroad, you do not have to go there to divorce. In an international marriage, German courts may have jurisdiction in accordance with the case. Regular residence, German, European, or international jurisdiction rules can be very relevant.

That is why search queries like “divorce in Germany for foreigners,” “divorce law in Germany for foreigners,” “married abroad and divorce in Germany,” or “international marriage and divorce in Germany” refer to a different legal matter.

In a case of recognition of a foreign divorce, a divorce has already taken place outside Germany, but normally, if the divorce takes place in Germany, the case is heard by a German family court.

When it comes to divorce proceedings across borders, one of the first tasks is to determine which authorities of which country have jurisdiction and which laws are applicable. Only after the divorce is finalized can it be debated whether the decision has to be recognized elsewhere.

Effect of Recognition on Marital Status in Germany

A foreign divorce requiring official recognition may not be recognized in Germany, which leads to the understanding that for purposes of German law, the marriage continues to exist. Such situations create practical difficulties, for example, when the person needs to prove their marital status for the purpose of the new marriage or for name declaration, registration of civil status, or any other family or state issue.

In international family law, such situations are sometimes designated limping marriages, which means that the marriage is over in one country but exists in another.

In Germany, the proper acknowledgement of a divorce that was conducted abroad assists in the settlement of the issue and provides certainty about a person’s marital status. That is when the German authorities can formally acknowledge the divorce conducted abroad as a divorce having legal effect.

However, it is important to take into account that the acknowledgment of a divorce does not mean that the decisions made in the course of the procedure are also acknowledged. Acknowledging the dissolution of marriage does not imply that all decisions related to alimony, property division, pension sharing, or child custody or other issues are valid in Germany. Different regulations, both German and European, may apply to such matters.

International Divorce Cases Involving Multiple Legal Systems

International family cases can be very complex. For example, the spouses may marry in the country A, then go live in Germany, and finally get divorced in the country C. Moreover, the parties can be citizens of different countries and possess numerous assets and kids with different citizenships.

The problems encountered in such cases are subject to other influences than just the question of whether Germany is going to recognize the foreign divorce. International jurisdiction, applicable divorce laws, foreign judgment status, and issues related to recognition in Germany, as well as questions of maintenance, property rights, pensions, parental responsibilities, and immigration, can all be raised.

That is why foreign divorce recognition is so important in international divorce law and international family law in general. The different legal systems are often intertwined so that families do not find themselves facing contradictory statuses between various legal jurisdictions.

Legal Support for Foreign Divorce Recognition

Vera Zambrano & Associates provides legal advice and representation to clients in Germany and abroad, taking care of cases relating to cross-border divorce, international family law issues, and enforcing foreign family law decisions.

The legal aid in the case of foreign divorce may involve such issues as determining whether national recognition is required, identifying the relevant German institution, establishing what paperwork is needed, and considering legal issues related to the country of divorce.

In case the cross-border family law issues do not concern only international divorce, it can be beneficial to analyze the jurisdictions of all the family law problems rather than consider them one by one.

This law firm is open to international clients and provides legal support in three languages: German, English, and Spanish. Its services include working on cases concerning family law problems that relate to Germany and other jurisdictions, thus enabling English-speaking clients living in Germany, expats, persons in binational marriages, and other foreign families to solve their family law matters.

Note: This article gives broad information on German and international family law; however, it does not constitute legal advice or an individual evaluation of a particular case.