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Germany Divorce

GERMAN DIVORCE LAW FOR INTERNATIONAL MARRIAGE

 

By Auswartiges Amt, the German Federal Foreign Office


 

Validity of the marriage

There is no special procedure or authority solely empowered to recognize marriages entered into abroad. The question of whether a marriage is valid is therefore always only a preliminary issue in connection with other administrative acts (e.g. change of name, application to start a family book at a domestic registry, change of entry on one's tax card, etc). This preliminary issue must be determined by the agency responsible at its own discretion.

The basic rule is that a marriage entered into abroad will be regarded as valid in Germany if the legal provisions relating to marriage of that foreign state were abided by. In addition both the bride and groom must meet all legal capacity requirements for marriage under the law of their home states (they must for example be single, over a minimum age and not too closely related to one another).

German nationals are not obliged to apply to start a family book or to change their name upon marriage. It is therefore possible for someone to be validly married without this appearing in German civil status records. A further marriage would however be bigamous and could thus be annulled at any time upon the application of one of the three spouses or the competent administrative authority.

Recognition of foreign marriage certificates

A foreign marriage certificate proves that a marriage has been entered into abroad. In some states (e.g. the US and Canada) the couple is only given a provisional certificate (or a "summary marriage certificate") after the ceremony. The marriage must subsequently be registered with the competent authority in order to obtain a full extract from the register. For further information see the fact sheets produced by the Federal Office of Administration (see "Legal provisions relating to marriage" below).

Foreign marriage certificates are often only recognized by domestic authorities or courts when their authenticity or evidentiary value has been determined in a separate procedure. A range of standard international procedures have been developed, which you can find out more about under the heading "International Recognition/Legalization of documents."

Legal provisions relating to marriage

The German missions abroad regularly report on the law relating to marriage in their host countries. This information is then sent to the Bundesverwaltungsamt (Federal Office of Administration) in Cologne, which produces five brochures on the subject, for the regions Europe, North America, Latin America, Asia/Australia and Africa. These leaflets, entitled "Deutsche heiraten in ..." (Germans marrying in ...) can only be obtained from the advisory units of certain charities for a small fee. A list of such organizations can be obtained free of charge from the Bundesverwaltungsamt, Informationsstelle für Auswanderer und Auslandstätige, 50728 Köln, tel. +49 1888 3580, fax. +49 1888 358 2786 (Federal Office of Administration - Information Agency for Persons Working abroad and Emigrants). This list and further information are also available on the Internet on the homepage of the Federal Office of Administration, under the heading "Auswanderung" (Emigration).

Binding legal advice can however only be given by the official (or competent authority) abroad who will perform the ceremony, and so we strongly recommend that you also make direct contact with this person (or agency) in order to obtain accurate and up-to-date information on the documents required, whether they need to be authenticated or translated, and to agree a date for the wedding.

Marriages by German consular officers

Consular officials now only solemnize marriages in a few German missions, mainly in states which apply Islamic law. They are only able to marry couples if the bride or groom (or both) is resident in the consular district of that mission, at least one of couple is a German citizen and neither of them is acitizen of the country in which the marriage is to take place.

Related legal issues

 

The place where you marry does not automatically determine which country's laws are applicable to the various other legal issues connected with marriage (e.g. name, property, custody of children). A separate check should be run to establish which legal system will apply, especially if the bride and groom have different nationalities. It is always advisable to consult a lawyer with expertise in this area prior to getting married, who can if requested also help draw up a marriage contract.

Whether a German court or authority will apply German or foreign law depends on the provisions of private international law. The most important provisions of German private international law are to be found in the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch). The text of this Act and other useful information can be found in the brochure "Internationales Privatrecht" (Private international law), published by the Federal Ministry of Justice (Press and Public Relations Division), 10115 , which is available online at www.bmj.bund.de/publik/brosch. A brochure entitled "Das Eherecht" (Matrimonial law) is also available on this site.

You can find useful information on foreign law in the leaflets published by the Federal Office of Administration in Cologne on the matrimonial and family law of various states and in its information sheets entitled "Ehevertragliche Vereinbarungen in den EG-Staaten" (Marriage contracts in EC states) and "Islamische Eheverträge" (Islamic marriage contracts). Extensive specialist literature also exists on private international law and foreign law. One standard work available in many public libraries for consultation by anyone interested is the loose-leaf volume, "Internationales Ehe- und Kindschaftsrecht" (International matrimonial and child law), edited by Bergmann, Ferid and Henrich. Lack of space unfortunately prevents us from listing further sources of information and specialists in foreign law.

Divorce

 

Not all marriages last "till death do us part." If a marriage that was entered into abroad is to be terminated in Germany, there are often additional issues to be resolved, which will be looked at briefly below. The following information is however no substitute for obtaining proper legal advice.

The place at which the marriage was entered into does not automatically determine which court will have jurisdiction over the case or which law will be applied to the divorce proceedings. Both these issues have to be determined in each individual case.

According to section 606 of the German Code of Civil Procedure, German courts have jurisdiction over matrimonial matters, inter alia, when one spouse is a German national or, if both are foreign nationals, if they are both habitually resident in Germany. This jurisdiction is not exclusive, i.e. it may also be possible to get divorced abroad and, under certain conditions, to have such a divorce recognized in Germany (cf. "Recognition of a foreign divorce" below). Whether it is possible or sensible to get divorced abroad is something to be discussed with a specialist lawyer.

There is an exception to the principle that German nationals may always turn to the German courts: from 1 March 2001, for matrimonial matters in EU states (other than Denmark), it is no longer the nationality of the parties that is relevant but their place of permanent residence. Only if both husband and wife are German nationals may they choose to go to a German court. (Council Regulation (EC) No 1347/2000 of 29 May 2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq.)

The question of which law the German court is to apply in the divorce hearing (German or foreign law) is settled in accordance with the provisions of German private international law (cf. "Related legal issues" above). If the divorce is being obtained abroad, the foreign court will apply its country's private international law in order to determine which law is to be used in the divorce proceedings.

Recognition of foreign divorces

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 recognize foreign sovereign acts, insofar as it is not bound to do so by treaty. The dissolution of a marriage is thus basically 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 man and wife continue to be listed as such in German civil status records and registers of residents until the foreign divorce has been recognized (a "limping marriage"). It is thus not possible to enter into a new marriage in Germany before the divorce has been recognized, as it would be bigamous.

Formal recognition is in principle required for the marriage to be effectively dissolved in the eyes of the German law. The following are however exceptions to this rule:

Orders in matrimonial matters which were made in an EU state (other than Denmark) after 1 March 2001 will as a rule be recognized by the registries and authorities of the other member states without any separate preliminary judicial proceedings. The nationality of the parties is not relevant. Recognition will only be denied on the ground of major procedural irregularity or for reasons of public policy.

The European Regulation does not however prevent people from applying to the competent family court for a determination of recognition or non-recognition if they have a legal interest in the matter (Council Regulation (EC) No 1347/2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq., online at www.eu-rat.de).

To enter the divorce in the German civil status records, a certificate from the country where the divorce was obtained is nonetheless required in addition to the divorce decree. This certificate must take a certain form (see Article 33, Annex IV of the Regulation).

Decisions taken by the parties' state of origin: If the divorce was decreed by a court or authority of the state whose sole nationality the parties had at that date, and neither of them was subject to an alternative civil status regime (e.g. as a stateless alien, asylum seeker or foreign refugee), then formal recognition is unnecessary. Insofar as there is a particular legal interest in having a divorce recognized, formal recognition may be applied for. A legal interest is given if for example they need to submit a binding declaration of their civil status for a case arising from the divorce or for registration or taxation purposes.

In all other cases, the formal recognition of the foreign judgement in matrimonial matters must be obtained, pursuant to article 7, section 1 of the Family Law Amendment Act (Familienrechts-Änderungsgesetz). The Land judicial administration authorities are as a rule responsible for the recognition of such foreign judgements. 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 his/her habitual abode have jurisdiction. If neither of the parties 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 parties is resident in Germany and the 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 parties 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). An income-tested fee of between EUR 10 and EUR 310 is charged for the decision.

The recognition or non-recognition by the Land judicial administration authority 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 decree entered into force.

For further information on the application procedure contact the registry at your place of residence or at the place of your intended marriage, or the relevant Land judicial administration authority. Applications must be made on an official form, which can be obtained from the registry offices, the Land judicial administration authorities as well as from the German missions abroad. It can also be downloaded from the website of the Senate Department for Justice in Berlin, on which you will also find further useful information.

If a further marriage is entered into abroad before the dissolution of the first marriage has been recognized by the competent Land judicial administration authorities, the second marriage bears the taint of bigamy and is thus voidable. Such a situation could arise if, for example, the second marriage is entered into in a state that does not require 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 decree may be applied for. Recognition has retroactive effect as of the entry into force of the foreign order, and so once it is recognized that the first marriage has been dissolved, the second initially bigamous marriage is remedied.

The process of recognition of foreign 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, aliens law, social law and civil law – for example the statutory rules of inheritance. There are thus many reasons for having a specialized agency to 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 the bonds of marriage. Any other arrangements included in the foreign judgement regarding related issues (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 go to the German civil courts.

Procuring divorce decrees, marriage certificates and other documents from abroad

In order to prove that a marriage has been dissolved abroad, the marriage certificate, divorce decree and, if necessary, other documents must be submitted to the German authorities or courts. Should any difficulties, linguistic or otherwise, arise in procuring these documents which make direct contact with the issuing agency in the foreign country impossible, the German mission responsible for that district may be able to help. German missions are however permitted to procure documents for German nationals only. The applicant must moreover prove that he/she has a legitimate interest in obtaining the relevant document and must be able to provide detailed information (the full names of those involved, place, date, and if possible the registry number of the civil status records or the court file number).

Experience however shows that long waiting times are not uncommon. The German missions have no power to accelerate the time taken by the host country's authorities to process the application.

A fee is payable for procuring certificates and other documents. The fee (currently EUR 15 to EUR 100) and any costs incurred (e.g. fees charged by local authorities) are to be paid by the applicant.

If normal postal channels do not appear reliable enough for communicating with the German mission abroad, a private international courier service should be used instead. The diplomatic bag between the Foreign Office and its missions abroad is solely for the purpose of transporting official correspondence pursuant to the Vienna Conventions on Diplomatic and Consular Relations, and therefore cannot be used by private individuals. Click here for the addresses of the German missions abroad and details of their consular districts.

Recognition abroad of German divorces

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 recognized 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 recognize foreign sovereign acts, insofar as it is not bound to do so by treaty. The dissolution of a marriage is thus basically only valid in the state in which it was dissolved (see above, recognition of foreign divorces), and so separate proceedings are usually required for its recognition elsewhere.

One exception to this rule is German divorces granted in proceedings after 1 March 2001 which are to be used in other EU member states (other than Denmark). The divorce decrees will as a rule be recognized without any additional preliminary judicial proceedings (Council Regulation (EC) No 1347/2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq., online at www.eu-rat.de). As proof of divorce, the EU member states (excluding Denmark) require you to submit the divorce decree and a certificate from the court which must take a certain form (see Article 33, Annex IV of the Regulation).

All other states, however, usually require a decision by a court or authority of their own before they will recognize 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 recognized as a matter of principle and must, where necessary, be repeated there.

For further advice on these matters please consult a specialist lawyer.

To obtain an overview, you could consult some of the legal literature on the subject, e.g. commentaries on section 328 of the Code of Civil Procedure, "Internationales Ehe- und Kindschaftsrecht" (International matrimonial and child law) by Bergmann, Ferid and Henrich and "Internationaler Rechtsverkehr in Zivil- und Handelssachen" by Bülow, Böckstiegel, Geimer and Schütze. Lack of space unfortunately prevents us from listing further sources of information and specialists in foreign law.

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