Applicable law

On 21 June 2012, the EU Rome III Regulation entered into force governing which law is to be applied in the case of a divorce in an international context.

This Regulation applies for 17 member states participating in the enhanced cooperation in this field: Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

Courts in these member states use Rome III to determine which law to apply in the event of divorce. Further countries can follow. Courts in other countries continue to apply the rules of their own private international law to decide this question.

Given the increased mobility of citizens and the growing number of both bi-national marriages and people with several nationalities, Rome III creates uniform rules on which law is to be applied in the event of divorce. This decision is based primarily on the couple’s habitual residence and no longer first and foremost on their nationality.

Rome III also strengthens the possibility of choosing which law is to apply. The couple can decide themselves which law is to be used for their divorce. They can, for example, choose the law of a state of which one of the spouses is a national at the point in time when the applicable law is being identified. If one of the spouses is German, German law can be chosen.

Why is it important to know about this Regulation?

If the spouses have not agreed on the law to be applied, the law of the country of their habitual residence at the time the court is seized shall apply.

If they no longer have a shared habitual residence, the law of the state shall be applied in which the spouses most recently had their habitual residence, unless both partners are no longer habitually resident in that place or a partner ceased being resident there more than one year previously.

In this case, the law of the state shall apply whose nationality both spouses had at the time the court is seized. If they have no common nationality, the law of the state of the court seized shall apply.

What does “applicable divorce law” mean?

The Rome III Regulation applies to material divorce law. This includes prerequisites for divorce, such as, for example, a period of separation. Many legal systems rule that certain conditions need to be fulfilled in order for a divorce to be granted.

Consequences of the marriage in terms of property, as well as maintenance obligations, are excluded from the Rome III Regulation, as is the question of the name of the spouses, parental responsibility and trusts or successions.

Foreign divorce law is also to be applied when it is not the law of a state participating in Rome III. Only if the foreign law does not provide for divorce or if a spouse is not afforded equal access to divorce on the grounds of their gender is this law not to be applied, but rather the law of the forum. The application of a provision of applicable law can otherwise only be refused if its application is incompatible with the public policy of the forum.

Where is the habitual residence?

The “habitual residence” is the place where a person lives in circumstances which make it clear that this person is not merely staying in this place or region temporarily. This is identified using the pertaining conditions; it is decided where the primary focus of social contacts is to be found, in particular contacts in the family and professional sphere. A planned continuous stay of more than six months is always considered to be more than temporary from the outset, regardless of short interruptions.

The habitual residence of a person or a couple can therefore change upon them moving to a different place. This applies for persons moving abroad permanently but also to those who spend only a period of time abroad, at least when the period abroad is planned to be longer than six months and the centre of interests is transferred to this place.

What is important for the choice of law?

Time factor

Rome III means agreement can be reached on the law to be applied in the event of divorce. This choice of law can also be made directly before seizing the court and in Germany the decision can even be made after proceedings have begun. It is, however, advisable to reach agreement at an early stage.

The choice of law made in a marriage contract concluded before the entry into force of Rome III remains valid. However, marriage contracts between spouses of the same nationality will often not contain a choice of law because it was hitherto not possible to choose the law to be applied in divorce proceedings. The (also previously possible) choice of law for the property consequences of the marriage does not constitute the choice of law to be applied in the event of divorce pursuant to Rome III.

Formal requirements

Rome III requires the written form (for example, written using a PC, dated and signed by both spouses). If the spouses are habitually resident in a state not participating in Rome III, the written form is sufficient for the choice of law also if they want to divorce before a German court.

If, however, the spouses are habitually resident in a state participating in Rome III when they are choosing the law to be applied (or if one spouse is in this state and the other in a state not participating in Rome III) and if this state has additional or different formal requirements, the formalities required by this state must be complied with.

In Germany, the formal requirements dictate that an agreement on the choice of law needs to be recorded in a notarial act. These formal requirements must apply if (and only if) both spouses are habitually resident in Germany at the time of the choice of law or if one spouse is habitually resident in Germany and the other in a state not participating in Rome III or if the choice of law is to be made during the pending divorce proceedings in Germany. The formal requirements under German law can be applied if one spouse is habitually resident in Germany and the other in another participating state.

Where can divorce proceedings take place?

One of the spouses can seize a court in the place of shared habitual residence abroad. A spouse who has returned to Germany after separation abroad can only seize the German court that has jurisdiction over the place of their new habitual residence in Germany in exceptional cases (see below). If both partners are German nationals living abroad, they can conduct divorce proceedings in Germany (at Amtsgericht Berlin-Schöneberg (Berlin-Schöneberg Local Court)) if they do not want to conduct divorce proceedings abroad.

Responsibility of German courts?

There is an exception to the principle anchored in German family law that Germans can always turn to the German courts: When it comes to decisions on matrimonial matters, what is decisive in the EU member states (with the exception of Denmark) is not the nationality of the spouses but their place of habitual residence. Only if both are German nationals can a German court be seized regardless of the place of residence pursuant to the Brussels IIb Regulation. This Regulation has applied since 1 August 2022 in all member states of the European Union with the exception of Denmark and adopts the provisions contained in the Brussels IIa Regulation.

Recognition of a foreign divorce in Germany

In accordance with the general principles of constitutional and international law, court judgements and similar sovereign acts only have direct legal effect within the territory of the state in which they were passed or performed. Every state is free to determine whether and under which conditions it will recognise foreign sovereign acts, insofar as it is not bound to do so by treaty. The dissolution of a marriage is thus initially only valid in the state in which it was dissolved. In Germany a marriage dissolved abroad continues to be viewed as still in existence. For example, the spouses continue to be listed as such in German civil status records and registers of residents until the foreign divorce has been recognised (a “limping marriage”). It is thus not possible to enter into a new marriage in Germany before the divorce has been recognised, as it would be bigamous.

The foreign judgement is only legally binding under German law once it has been recognised by the department of justice of the relevant German Land.

Special EU regulations

Judgements and decisions made in a member state of the EU (with the exception of Denmark) are recognised in the other member states without a special procedure (Article 21 (1) Brussels IIa Regulation, Article 30 (1) Brussels IIb Regulation). For a divorce to be recognised, you must provide the judgement or decision and a special certificate obtained from a court or authority in the member state where the divorce was obtained. This certificate must take a certain form (see Articles 37 and 39 Brussels IIa Regulation, Articles 31 and 36 Brussels IIb Regulation). The reasons for non-recognition will be examined as an incidental question by the authorities and courts taking the relevant decision. All who have a legitimate interest in establishing recognition or non-recognition of a judgement or decision can initiate a special recognition procedure (Article 21 (3) Brussels IIa Regulation, Article 30 (3) and Articles 59‑62 Brussels IIb Regulation). Recognition will only be denied on the ground of major procedural irregularity or for reasons of incompatibility with German public policy (section 109 (1) 4 Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).

The relevant EU Regulation does not, however, prevent you from seeking clarification on recognition or non-recognition of a foreign judgement or decision, if you have an interest in so doing. You can find these regulations on the EU website:

• Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIa)
• Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction

Recognition procedure

For a divorce to be recognised, you must provide the divorce decree and a special certificate obtained from a court or authority in the member state where the divorce was obtained. This certificate must take a certain form (Article 39 and Annex I Brussels IIa Regulation, Article 66 and Annex VIII Brussels IIb Regulation).

Decision taken by the parties’ state of origin: If the divorce was decreed by a court or authority of the state whose nationality the spouses both had at that date, and neither of them was subject to an alternative civil status regime (e.g. as a stateless foreigner, asylum seeker or foreign refugee), then formal recognition is unnecessary. If one or both of the spouses have dual citizenship, it is to be determined to which state the spouse or spouses have the closest connection. This is then the prevailing citizenship that applies for the decision taken by the parties’ state of origin. If one of the two spouses is also a German national, a recognition procedure is mandatory. Insofar as there is a particular legal interest in having a divorce recognised, formal recognition may be applied for. A legal interest is given if, for example, the civil status needs to be legally clarified for a case arising from the divorce or for registration or taxation purposes.

In all other cases not mentioned above, formal recognition of foreign judgements or decisions in matrimonial matters must still be obtained pursuant to section 107 (1) of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction. The Land departments of justice are as a rule responsible for the recognition of such foreign judgements or decisions. Their duties may also be delegated to the Presidents of the Higher Regional Courts.

The judicial administration authorities of the Land in which one of the spouses has their habitual residence have jurisdiction. If neither of the spouses is resident in Germany, but a new marriage is to be entered into here, the authorities of the Land where the marriage will take place have jurisdiction. If neither of the spouses is resident in Germany and a new marriage is to be entered into abroad, the Senate Department for Justice in Berlin has jurisdiction.

Recognition is only undertaken upon application. In addition to the spouses themselves, all persons who can prove a legal interest in the clarification of the status issue may also apply (e.g. fiancé(e)s, subsequent spouses and heirs).

You can find out more about recognition procedures on the website of the Senate Department for Justice in Berlin (in German).

Effect of recognition

The recognition or non-recognition by the Land department of justice is binding on all courts and administrative authorities in Germany. Upon recognition, the divorce is valid under German law with retroactive effect from the date on which the foreign judgement or decision entered into force.

For further information on the application procedure, contact the registry office at your place of residence or at the place of your intended marriage, or the relevant Land department of justice. Applications must be made on an official form, which can be obtained from registry offices, the Land departments of justice and from the German missions abroad. It can also be downloaded from the website of the Senate Department for Justice in Berlin.

If a further marriage is entered into abroad before the dissolution of the first marriage has been recognised by the competent Land department of justice, the second marriage is considered bigamy and can thus be annulled. Such a situation could arise if, for example, the second marriage is entered into in a state that does not require prospective spouses who are foreign nationals to provide certificates of no impediment. Complications can also arise with dual nationals who have German nationality and the nationality of the state in which the marriage was dissolved, even if the second marriage is entered into in good faith. In this case, however, the annulment proceedings will be stayed so that recognition of the foreign divorce judgement or decision may be applied for. Recognition has retroactive effect as of the entry into force of the foreign judgement or decision, and so once it is recognised that the first marriage has been dissolved, the second initially bigamous marriage is remedied.

Why is a special procedure required?

The process to decide on the recognition of foreign judgements or decisions in matrimonial matters is important as it establishes certainty as regards the existence or non-existence of a marriage, and a large number of legal consequences hinge upon this question. A marriage has far-reaching implications in terms of taxation law, foreigners law, social law and civil law – for example as regards the statutory rules of inheritance for spouses. There are thus many reasons for having a specialised agency deal with the recognition of foreign divorces with final and binding effect for all German authorities and courts.

The recognition by the Land judicial administration authorities is, however, restricted to the dissolution of marriage. Any other arrangements included in the foreign judgement or decision regarding matters arising from the divorce (maintenance claims, pension arrangements, property issues) are not affected by the decision of the Land judicial administration authorities. If any of these matters is in dispute or in need of further action in Germany, you must approach the German civil courts.

Recognition of a German divorce abroad

In some circumstances (e.g. to ascertain the requirements for a bi-national marriage or to enforce property rights) it is necessary for a German divorce to be recognised abroad and, where applicable, to be entered into the local civil status records.

In accordance with the general principles of constitutional and international law, court judgements and similar sovereign acts only have direct legal effect within the territory of the state in which they were passed or performed. Every state is free to determine whether and under which conditions it will recognise foreign sovereign acts, insofar as it is not bound to do so by treaty. A divorce is thus basically only valid in the state in which it was decreed (see above, recognition of foreign divorces), and so separate proceedings are usually required for its recognition elsewhere.

Special EU regulations

German divorces that fall under Council Regulation No. 2201/2003 or Council Regulation No. 2019/1111 are an exception to this rule. They will as a rule be recognised in other EU member states (excluding Denmark), without any additional judicial proceedings.

You can find these regulations on the EU website:

• Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels IIa)
• Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction

As proof that you have been divorced in the EU member states (excluding Denmark), you must provide the divorce decree and a special certificate obtained from a court or authority in the member state where the divorce was obtained. This certificate must take a certain form (Article 39 and Annex I Brussels IIa Regulation, Article 66 and Annex VIII Brussels IIb Regulation).

Different regulations around the world

All other states, however, usually require a decision by a court or authority of their own before they will recognise German divorces. Bilateral or multilateral agreements are in force with some states which facilitate the mutual recognition of divorce decrees. In some states foreign divorces are not recognised as a matter of principle and must, where necessary, be repeated there.

In such cases, it is advisable to seek legal advice to clarify how to proceed.