Recognition of a Foreign Divorce in Germany

First, a distinction must be made as to whether the recognition of the divorce decree concerns an EU member state or whether the regulations for third countries apply. This distinction is extremely important, as stricter requirements apply to recognising judgements from third countries. The recognition of a judgement from an EU member state is much less complicated and requires fewer precautions than recognition from third countries. Nevertheless, there are also some special legal features to consider here.

Divorce decrees issued in an EU member state and that have become legally binding are generally recognised in all member states, as stipulated in Art. 21 Para. 1 of the EU Marriage Regulation. This regulation also applies to judgements that pronounce the annulment or declaration of the non-existence of the marriage (declaration of invalidity) and to judgements on legal separation.

The recognition of judgments from other Member States that fall within the scope of application of Art. 21 Para. 1 of the Regulation does not require a formal recognition procedure in Germany; they are to be recognised automatically. This means that the procedure under Section 107 of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG) is superseded in Germany for judgements in matrimonial matters issued in another Member State.

A refusal to recognise divorce decrees, declarations of invalidity and decisions on legal separation issued in a Member State can only be considered in exceptional cases. However, it may only be based on the grounds standardised in the catalogue of Art. 22 of the Regulation. These are additionally restricted by the prohibitions on review set out in Art. 24-26 of the Regulation:

• According to Art. 24 of the Regulation, a review of the jurisdiction assumed by the court of the Member State of origin is excluded. The provisions of the Regulation on international jurisdiction are not subject to public policy review.
• Art. 26 of the Regulation generally excludes the assertion of alleged factual incorrectness of the decision to be recognised. Under no circumstances may the court – or the registrar – review the decision on the merits.

The documents required to recognise a foreign divorce depend on the individual case. If it is a judgment from another EU member state, the divorce decree and a certificate issued by the competent body in the member state of origin are required for recognition.

A formal procedure following Section 107 (1) FamFG is required in other cases. The state justice administrations are responsible for the recognition decisions, and their local jurisdiction is based on the habitual residence of the spouses. The decision itself is only made at the request of an authorised applicant.

Please contact us personally to obtain a comprehensive legal assessment of your case. This is the only way we can ensure that your recognition proceedings are carried out successfully and that your foreign divorce decree is recognised with legal effect in Germany.

If the state administration of justice decides to recognise or not to recognise a foreign divorce decree, this decision is binding on all courts and administrative authorities in the German jurisdiction. If recognised, the marriage is also deemed to be divorced within Germany. If no recognition proceedings are initiated, the spouses continue to be considered married. This can have considerable consequences, particularly in family and inheritance law. For example, remarriage is impossible for either spouse due to the double-marriage ban. However, such a marriage is punishable in Germany following Section 172 of the German Criminal Code (StGB). If a further marriage is entered into abroad, it can be dissolved within Germany if the state judicial office has not recognised the dissolution of the first marriage.

The consequences under German inheritance law must also be considered. In the event of the death of one of the spouses, the other spouse inherits a quarter of the assets according to the statutory provisions or half of the assets in the case of a community of accrued gains. Depending on the individual case, the surviving spouse can inherit the entire estate of the deceased spouse. This means that the financial consequences of inheritance are considerable if the divorce has not been legally recognised. It is therefore strongly recommended that, in the event of a foreign divorce, it should be dealt with as quickly as possible to ensure that it is also recognised in German law.

Regarding the recognition of a German divorce abroad, the same rules apply regarding the recognition of a foreign divorce in Germany: A German divorce decree only has a legal effect within Germany. Therefore, recognising a German divorce decree abroad also requires a recognition procedure, with exceptions again within the EU and in the case of a home state decision.

A registered marriage between two persons gives rise to various legal consequences. The consequences under tax law, social law and civil law are far-reaching, which is why clarity regarding the existence or non-existence of marriage is of considerable importance. Therefore, under German law, a specialised authority decides on this issue with final effect for the other German state bodies.

However, it should be noted that this decision is limited only to the dissolution of the marriage. If there are questions or disputes regarding further consequential issues concerning the dissolution of the marriage, these are to be resolved independently of the recognition of the divorce. In the event of proceedings, the civil courts would then have jurisdiction.