A divorce with international elements involves several specific legal questions: Which court has jurisdiction? Which law applies? And will my divorce even be recognized?

What is a divorce with an international element?

International divorce proceedings always exist if at least one spouse is a foreign national, lives abroad or if the marriage was concluded abroad. An international connection can also exist if both spouses are German but live abroad permanently.

Example: A German citizen lives with his French wife in Switzerland. The couple wish to separate. The question now arises as to whether the divorce should take place in Germany, France or Switzerland – and which national law should be applied.

Good to know: There is a difference between court jurisdiction and applicable law! In most cases, a German court will also apply German law. However, it can also happen that you get divorced before German courts under foreign law!

Jurisdiction under EU law – Brussels IIb Regulation

The Brussels IIb Regulation governs the international jurisdiction of courts for married couples with a connection to an EU Member State (except for Denmark). Article 3 of this Regulation is decisive. The courts have international jurisdiction:

• At the habitual residence of both spouses or one spouse
• At the last common place of residence, if one of the spouses still lives there
• At the place of residence of the defendant or claimant (subject to conditions)
• Or in the country of which both spouses are nationals

This rule serves the purpose of predictability and prevents a race for jurisdiction.

Which law applies? – Rome III Regulation

The question of which substantive divorce law is applicable is regulated for many European countries by the Rome III Regulation. According to Article 5, spouses can make a choice of law. This agreement is subject to notarization (or, in the case of ongoing proceedings, court recording, Art. 5 para. 3 sentence 2 Rome III Regulation in conjunction with Art. 46e para. 2 sentence 1 Rome III Regulation). Art. 46e para. 2 sentence 2 EGBGB in conjunction with § 127a BGB) and can determine German, French or Spanish law, for example. This choice of law is intended to give the spouses more flexibility and legal certainty.

If there is no such agreement, the following connecting factors apply in accordance with Article 8 of the Rome III Regulation:

• The law of the habitual residence of both spouses
• If not given: the law of the last common habitual residence, if one of them still lives there
• Otherwise: the law of the common nationals 
• If this is also missing: the law of the state of the court seized.

Divorce with reference to Switzerland or third countries

In the case of divorces outside the EU – for example in Switzerland, the USA, Great Britain or Turkey – no EU regulations apply. National regulations and, where applicable, bilateral or multilateral agreements apply.

EU regulations are primarily designed for internal EU matters. Nevertheless, the Brussels IIb Regulation is in principle also applicable in relation to third countries (“universal applicability”), as it creates a harmonized system of jurisdiction for the European Union. The Regulation supersedes national jurisdiction law insofar as the Regulation itself does not contain any deviating provisions. This means that courts in Member States must first examine their jurisdiction based on the Brussels IIb Regulation, even if the matter relates to a third country. The applicability of the EU-Regulation may also mean that the law of the third country applies in a specific case.

However, it should be noted that the Brussels IIb Regulation does not govern the jurisdiction of the courts in all cases. In certain situations, it may be necessary to fall back on national rules of jurisdiction, especially if the Regulation does not provide a clear rule on jurisdiction.

For such cases, the relevant laws for Germany can be found in the Introductory Act to the German Civil Code (EGBGB), in particular Article 17 for the divorce statute and Articles 14, 15 EGBGB for the applicable personal law. Here too, habitual residence and nationality play a central role. 

Regarding the applicable substantive law, Article 4 of the Rome III Regulation explicitly provides for the “universal application” of the Regulation. The law designated under the Regulation therefore also includes the law of a non-participating member state.

In the case of spouses who live in Germany, but both have sole Iranian citizenship, the Treaty on Establishment between Germany and the Persian Empire of 17 February 1929 applies, which takes precedence in accordance with Art. 19 para. 2 of the Rome III Regulation if Art. 12 of the GRC is not relevant. According to Art. 8 Para. 3 of the Treaty, the law of the home country is to be applied.

The international divorce process – step by step

Divorce proceedings with an international dimension take place in several steps. In addition to legal expertise, international divorces also require a strategic approach.

Step 1: initial consultation and examination of jurisdiction

The first step is to carefully analyze the facts of the case: Where was the marriage concluded? Where were the spouses domiciled? Where do the spouses currently live? What nationalities do they have?

On this basis, it is carefully examined whether a German or foreign court has jurisdiction. The above-mentioned provisions of the Brussels IIb Regulation or – in the case of third countries – § 98 FamFG in conjunction with the general regulations of German international civil procedure law are decisive.

Step 2: Determination or agreement of the applicable law

Once jurisdiction has been established, the question arises: Which law shall apply to the divorce?

In doing so, we pay attention to whether an agreement on the choice of law (in accordance with Article 5 Rome III Regulation) already exists or whether it appears possible and sensible to make such an agreement in the individual case. The spouses can still make the choice of law up to the end of the oral hearing at first instance, Art. 5 para. 3 Rome III Regulation in conjunction with Art. 46e para. 2 sentence 1 EGC. Art. 46e para. 2 sentence 1 EGBGB.

Without such an agreement, the applicable law is determined based on the objective criteria set out in Article 8 of the Rome III Regulation. 

Steps 1 and 2 should by no means be underestimated! Even here, “forum shopping” can be important, as some courts decide more favorably in matters of maintenance, for example. If different courts have jurisdiction and the application of different legal systems is possible, it is worth investigating in advance which outcome is more favorable for our client. To this end, we consult with foreign lawyers in order to make the most favorable strategic choice for our clients. 

Step 3: submission of the divorce petition

The application is submitted to the family court with local and international jurisdiction (for Germany: § 122 FamFG in accordance with Art. 3 Brussels IIb Regulation). In the case of a international context, relevant documents (e.g. marriage certificate, proof of habitual residence, foreign judgments) must be certified and translated, if necessary, unless international documents are already available.

Step 4: court proceedings

In Germany, the procedure follows the FamFG (Act on Proceedings in Family Matters). Abroad, the foreign procedural rules apply. 

Typical procedural steps are

– Examination of the conditions for divorce (e.g. period of separation)

– Hearing of the spouses

– If necessary, hearing of the children (for custody issues; depending on their age)

Step 5: decision and recognition procedure

Once the divorce has been finalized, it is effective and binding. No specific recognition is required for EU judgments (Art. 30 et seq. Brussels IIb Regulation) for them to be valid in Germany. Recognition is automatic here and, if necessary, the issuance of the certificate in accordance with Art. 36 Brussels IIb Regulation is sufficient. For divorces outside the EU, a formal recognition procedure in accordance with § 107 FamFG is required with the competent state justice administration so that these are recognized in Germany.

Step 6: regulation of consequential matters (maintenance, custody, property)

Subsequent matters are usually also settled in the divorce proceedings. However, certain cases often require separate regulations or proceedings.

International divorces often involve international matters:

• Maintenance: Application of the 2007 Hague Maintenance Convention in conjunction with § 98 para. 1 FamFG
• Custody and rights of access: application of the Brussels IIb Regulation and international conventions such as the Hague Convention on the Protection of Children (Hague Convention)
• Matrimonial property law / division of assets: Application of the Hague Matrimonial Property Regime or the EU Regulation on the law of property (EU) 2016/1103
• Pension equalization: In case of foreign reference, this is subject to § 17 VersAusglG in accordance with § 109 FamFG

Depending on the constellation, it may be necessary to involve foreign lawyers, tax advisors, authorities (e.g. consulates) or courts in the proceedings.

International divorces are complex – both legally and organizationally. Jurisdiction, applicable law, recognition of foreign decisions and language barriers require structured planning and multidisciplinary and multinational advice. Our law firm supports you in all steps – from the strategic choice of law to the enforcement of foreign judgments – competently, client-oriented and with many years of international experience.

We are happy to advise you in English, German and French!