INTERNATIONAL FAMILY LAW
International divorce: which court, which law
In a divorce with a foreign element three questions arise at once: which court may decide, which law it applies, and whether the outcome will also hold good in the other state. I am Dr Hanna Schmidt, attorney at law, and I handle such proceedings myself, throughout Germany, in person at my office in Cologne or by video, and in English. Billing is by time, not by the value in dispute.
Three questions decide the outcome: court, law, recognition
Jurisdiction: Brussels IIb opens several fora
Within the European Union, Regulation (EU) 2019/1111, Brussels IIb for short, governs which court may decide in matrimonial matters. Article 3 names several connecting factors, and they stand side by side rather than in any order of precedence: the habitual residence of both spouses, the last joint residence if one spouse still lives there, the respondent's residence, the applicant's residence after one year, and common nationality.
That several states can have jurisdiction at the same time is the normal case. Denmark is not bound by the Regulation, and separate rules apply to third states such as Switzerland, the United Kingdom or the USA. Where two courts have jurisdiction, the priority principle applies: the court seised first conducts the proceedings. Whoever files first effectively chooses the proceedings.
Applicable law: Rome III and the choice of law
Which divorce law a German court applies is not in the Civil Code but in Regulation (EU) No 1259/2010, Rome III for short. Spouses can agree on the divorce law, but only from a limited range (Article 5). The agreement has to be concluded in writing, dated and signed by both (Article 7). In Germany notarial recording is provided for.
Without a choice of law the cascade in Article 8 applies: common habitual residence when the court is seised, otherwise the last common residence within the past year provided one of them still lives there, otherwise common nationality, otherwise the law of the court seised. Where a German court applies foreign divorce law, its content has to be introduced into the proceedings.
Recognition of a foreign divorce in Germany
A divorce granted abroad does not take effect in Germany automatically. Decisions from other EU member states are recognised under Brussels IIb without any special procedure. For all other states a recognition procedure runs before the state justice administration. Without that declaration you continue to count as married, with consequences for a new marriage, for inheritance rights and for tax.
There is one exception: where a court of the state of which both spouses were nationals at the time of the decision has decided, the procedure is not required. More difficult are divorces granted abroad by religious or administrative declaration rather than by a court. Whether they are recognised in Germany depends very much on the individual case and on German public policy (ordre public).
Ancillary matters follow their own rules
The most common misconception in this field: the divorce law settles everything else along with it. The opposite is true. Maintenance: jurisdiction, recognition and enforcement follow Regulation (EC) No 4/2009, the EU Maintenance Regulation. Which maintenance law applies follows its own connecting rules. Parental custody and contact: under Brussels IIb the courts at the child's habitual residence regularly have jurisdiction.
Matrimonial property and accrued gains: here too there is a separate connecting rule, and it can lead to a law other than the one applicable to the divorce. The pension rights adjustment: entitlements with foreign pension providers cannot readily be divided in German proceedings. One divorce, four areas to settle, in extreme cases four different legal systems. Proceedings planned around the divorce petition alone founder on this.
What makes a divorce with a foreign element complicated
01
The choice of law comes too late
A choice of law under Rome III is a drafting tool for as long as both sides are still speaking to each other. Otherwise the cascade applies, and it can lead to a law neither of them wanted. Deadlines and the division of assets can then turn out differently too.
02
Two sets of proceedings run in parallel
Both sides file for divorce, in two states, without coordination. The court seised later has to stay its proceedings, but the costs have been incurred. That costs weeks, double legal fees in two countries and a forum nobody chose.
03
The foreign documents are incomplete
A marriage certificate in the local language without a translation, a decision without a certificate of finality, a copy without certification, a missing apostille. The court or the registry office comes back with queries, the hearing falls through, and obtaining documents abroad often takes months rather than days.
04
Recognition is not checked
A couple believe they are divorced because there is a judgment in their country of origin. In Germany the declaration is missing. The registry office then refuses a new marriage, and on death a statutory spousal inheritance right appears that nobody had reckoned with.
05
Assets abroad are left out
A flat in Spain, a securities portfolio in Switzerland. If that is not recorded and valued early, it is missing from the division. What is left at the end is a settlement on half the assets and enforcement abroad that is difficult without preparation.
How I proceed
01
Recording the connecting factors, with dates
I record who lived where and when, month by month: both spouses' places of residence, nationalities, the place and date of the marriage, where the children live, and the location and type of the assets.
02
Weighing jurisdiction against applicable law
Which courts have jurisdiction, which law would apply, how long it takes. You receive a comparison with the advantages and disadvantages and a clear assessment of where the time pressure lies.
03
Organising documents, translations and apostilles
Public documents coming from abroad frequently need an apostille under the 1961 Hague Convention. Foreign-language documents need a certified translation by a translator authorised in Germany.
04
Conducting the proceedings and involving foreign advisers
I conduct the proceedings and correspond in German and in English. Where foreign law is needed, I bring in colleagues on the ground and take over the coordination.
A situation that arises regularly
01
Married abroad, lived in Germany
One spouse has returned to their country of origin, and the assets include a property there and shares in a German company. The first task is to determine both parties' habitual residence and to examine which courts would have jurisdiction. Then comes the decision whether a choice of law is achievable.
Office in Cologne, proceedings across borders
My office is at Jakordenstrasse 8 in 50668 Cologne, a few minutes from the main station. Anyone coming from Cologne or the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, is usually glad to sit down in person to record the connecting factors. Everything else runs by video or phone, in German and in English.
Which family court conducts your proceedings follows the rules on local jurisdiction in the individual case and not the seat of my office. I can therefore represent you even where the court is not in Cologne. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
Several courts can have jurisdiction at the same time. Within the EU, Article 3 Brussels IIb opens, among others, the habitual residence of both spouses, the last joint residence if one still lives there, the respondent's residence and common nationality. There is no order of precedence. If both sides file, the court seised first conducts the proceedings. For third states, separate jurisdiction rules apply.
The applicable divorce law is determined by the Rome III Regulation, not by nationality alone. If you have made no choice of law, the law of your common habitual residence when the court is seised applies, then that of the last common residence if it is no more than a year ago and one spouse still lives there, then common nationality, and finally the law of the court seised.
Yes, but not freely. Under Article 5 Rome III the options are: the law of your common habitual residence, of your last common residence if one of you still lives there, the law of a spouse's nationality, and the law of the court seised. The agreement has to be in writing, dated and signed by both. In Germany notarial recording is provided for. Making a choice of law early makes sense.
If the decision comes from another EU member state other than Denmark, it is recognised under Brussels IIb without any special procedure. In all other cases you need recognition by the state justice administration of the federal state in which one spouse has their habitual residence. What has to be produced is regularly the decision with a certificate of finality, the marriage certificate, certified translations and, depending on the state of origin, an apostille or legalisation.
I bill by time, at an hourly rate of 280 euros plus 19% VAT, and you receive an invoice with a detailed record of the work done. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. You submit the request for cover yourself.
Have a divorce with a foreign element examined
If proceedings have already been filed abroad, or you are considering where to file, timing counts. Bring to the first appointment whatever documents and residence details you have. I advise throughout Germany, by video or phone, in German and in English.
INTERNATIONAL FAMILY LAW
International divorce: which court, which law
In a divorce with a foreign element three questions arise at once: which court may decide, which law it applies, and whether the outcome will also hold good in the other state. I am Dr Hanna Schmidt, attorney at law, and I handle such proceedings myself, throughout Germany, in person at my office in Cologne or by video, and in English. Billing is by time, not by the value in dispute.
Three questions decide the outcome: court, law, recognition
Jurisdiction: Brussels IIb opens several fora
Within the European Union, Regulation (EU) 2019/1111, Brussels IIb for short, governs which court may decide in matrimonial matters. Article 3 names several connecting factors, and they stand side by side rather than in any order of precedence: the habitual residence of both spouses, the last joint residence if one spouse still lives there, the respondent's residence, the applicant's residence after one year, and common nationality.
That several states can have jurisdiction at the same time is the normal case. Denmark is not bound by the Regulation, and separate rules apply to third states such as Switzerland, the United Kingdom or the USA. Where two courts have jurisdiction, the priority principle applies: the court seised first conducts the proceedings. Whoever files first effectively chooses the proceedings.
Applicable law: Rome III and the choice of law
Which divorce law a German court applies is not in the Civil Code but in Regulation (EU) No 1259/2010, Rome III for short. Spouses can agree on the divorce law, but only from a limited range (Article 5). The agreement has to be concluded in writing, dated and signed by both (Article 7). In Germany notarial recording is provided for.
Without a choice of law the cascade in Article 8 applies: common habitual residence when the court is seised, otherwise the last common residence within the past year provided one of them still lives there, otherwise common nationality, otherwise the law of the court seised. Where a German court applies foreign divorce law, its content has to be introduced into the proceedings.
Recognition of a foreign divorce in Germany
A divorce granted abroad does not take effect in Germany automatically. Decisions from other EU member states are recognised under Brussels IIb without any special procedure. For all other states a recognition procedure runs before the state justice administration. Without that declaration you continue to count as married, with consequences for a new marriage, for inheritance rights and for tax.
There is one exception: where a court of the state of which both spouses were nationals at the time of the decision has decided, the procedure is not required. More difficult are divorces granted abroad by religious or administrative declaration rather than by a court. Whether they are recognised in Germany depends very much on the individual case and on German public policy (ordre public).
Ancillary matters follow their own rules
The most common misconception in this field: the divorce law settles everything else along with it. The opposite is true. Maintenance: jurisdiction, recognition and enforcement follow Regulation (EC) No 4/2009, the EU Maintenance Regulation. Which maintenance law applies follows its own connecting rules. Parental custody and contact: under Brussels IIb the courts at the child's habitual residence regularly have jurisdiction.
Matrimonial property and accrued gains: here too there is a separate connecting rule, and it can lead to a law other than the one applicable to the divorce. The pension rights adjustment: entitlements with foreign pension providers cannot readily be divided in German proceedings. One divorce, four areas to settle, in extreme cases four different legal systems. Proceedings planned around the divorce petition alone founder on this.
What makes a divorce with a foreign element complicated
01
The choice of law comes too late
A choice of law under Rome III is a drafting tool for as long as both sides are still speaking to each other. Otherwise the cascade applies, and it can lead to a law neither of them wanted. Deadlines and the division of assets can then turn out differently too.
02
Two sets of proceedings run in parallel
Both sides file for divorce, in two states, without coordination. The court seised later has to stay its proceedings, but the costs have been incurred. That costs weeks, double legal fees in two countries and a forum nobody chose.
03
The foreign documents are incomplete
A marriage certificate in the local language without a translation, a decision without a certificate of finality, a copy without certification, a missing apostille. The court or the registry office comes back with queries, the hearing falls through, and obtaining documents abroad often takes months rather than days.
04
Recognition is not checked
A couple believe they are divorced because there is a judgment in their country of origin. In Germany the declaration is missing. The registry office then refuses a new marriage, and on death a statutory spousal inheritance right appears that nobody had reckoned with.
05
Assets abroad are left out
A flat in Spain, a securities portfolio in Switzerland. If that is not recorded and valued early, it is missing from the division. What is left at the end is a settlement on half the assets and enforcement abroad that is difficult without preparation.
How I proceed
01
Recording the connecting factors, with dates
I record who lived where and when, month by month: both spouses' places of residence, nationalities, the place and date of the marriage, where the children live, and the location and type of the assets.
02
Weighing jurisdiction against applicable law
Which courts have jurisdiction, which law would apply, how long it takes. You receive a comparison with the advantages and disadvantages and a clear assessment of where the time pressure lies.
03
Organising documents, translations and apostilles
Public documents coming from abroad frequently need an apostille under the 1961 Hague Convention. Foreign-language documents need a certified translation by a translator authorised in Germany.
04
Conducting the proceedings and involving foreign advisers
I conduct the proceedings and correspond in German and in English. Where foreign law is needed, I bring in colleagues on the ground and take over the coordination.
A situation that arises regularly
01
Married abroad, lived in Germany
One spouse has returned to their country of origin, and the assets include a property there and shares in a German company. The first task is to determine both parties' habitual residence and to examine which courts would have jurisdiction. Then comes the decision whether a choice of law is achievable.
Office in Cologne, proceedings across borders
My office is at Jakordenstrasse 8 in 50668 Cologne, a few minutes from the main station. Anyone coming from Cologne or the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, is usually glad to sit down in person to record the connecting factors. Everything else runs by video or phone, in German and in English.
Which family court conducts your proceedings follows the rules on local jurisdiction in the individual case and not the seat of my office. I can therefore represent you even where the court is not in Cologne. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
Several courts can have jurisdiction at the same time. Within the EU, Article 3 Brussels IIb opens, among others, the habitual residence of both spouses, the last joint residence if one still lives there, the respondent's residence and common nationality. There is no order of precedence. If both sides file, the court seised first conducts the proceedings. For third states, separate jurisdiction rules apply.
The applicable divorce law is determined by the Rome III Regulation, not by nationality alone. If you have made no choice of law, the law of your common habitual residence when the court is seised applies, then that of the last common residence if it is no more than a year ago and one spouse still lives there, then common nationality, and finally the law of the court seised.
Yes, but not freely. Under Article 5 Rome III the options are: the law of your common habitual residence, of your last common residence if one of you still lives there, the law of a spouse's nationality, and the law of the court seised. The agreement has to be in writing, dated and signed by both. In Germany notarial recording is provided for. Making a choice of law early makes sense.
If the decision comes from another EU member state other than Denmark, it is recognised under Brussels IIb without any special procedure. In all other cases you need recognition by the state justice administration of the federal state in which one spouse has their habitual residence. What has to be produced is regularly the decision with a certificate of finality, the marriage certificate, certified translations and, depending on the state of origin, an apostille or legalisation.
I bill by time, at an hourly rate of 280 euros plus 19% VAT, and you receive an invoice with a detailed record of the work done. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. You submit the request for cover yourself.
Have a divorce with a foreign element examined
If proceedings have already been filed abroad, or you are considering where to file, timing counts. Bring to the first appointment whatever documents and residence details you have. I advise throughout Germany, by video or phone, in German and in English.
INTERNATIONAL FAMILY LAW
International divorce: which court, which law
In a divorce with a foreign element three questions arise at once: which court may decide, which law it applies, and whether the outcome will also hold good in the other state. I am Dr Hanna Schmidt, attorney at law, and I handle such proceedings myself, throughout Germany, in person at my office in Cologne or by video, and in English. Billing is by time, not by the value in dispute.
Three questions decide the outcome: court, law, recognition
Jurisdiction: Brussels IIb opens several fora
Within the European Union, Regulation (EU) 2019/1111, Brussels IIb for short, governs which court may decide in matrimonial matters. Article 3 names several connecting factors, and they stand side by side rather than in any order of precedence: the habitual residence of both spouses, the last joint residence if one spouse still lives there, the respondent's residence, the applicant's residence after one year, and common nationality.
That several states can have jurisdiction at the same time is the normal case. Denmark is not bound by the Regulation, and separate rules apply to third states such as Switzerland, the United Kingdom or the USA. Where two courts have jurisdiction, the priority principle applies: the court seised first conducts the proceedings. Whoever files first effectively chooses the proceedings.
Applicable law: Rome III and the choice of law
Which divorce law a German court applies is not in the Civil Code but in Regulation (EU) No 1259/2010, Rome III for short. Spouses can agree on the divorce law, but only from a limited range (Article 5). The agreement has to be concluded in writing, dated and signed by both (Article 7). In Germany notarial recording is provided for.
Without a choice of law the cascade in Article 8 applies: common habitual residence when the court is seised, otherwise the last common residence within the past year provided one of them still lives there, otherwise common nationality, otherwise the law of the court seised. Where a German court applies foreign divorce law, its content has to be introduced into the proceedings.
Recognition of a foreign divorce in Germany
A divorce granted abroad does not take effect in Germany automatically. Decisions from other EU member states are recognised under Brussels IIb without any special procedure. For all other states a recognition procedure runs before the state justice administration. Without that declaration you continue to count as married, with consequences for a new marriage, for inheritance rights and for tax.
There is one exception: where a court of the state of which both spouses were nationals at the time of the decision has decided, the procedure is not required. More difficult are divorces granted abroad by religious or administrative declaration rather than by a court. Whether they are recognised in Germany depends very much on the individual case and on German public policy (ordre public).
Ancillary matters follow their own rules
The most common misconception in this field: the divorce law settles everything else along with it. The opposite is true. Maintenance: jurisdiction, recognition and enforcement follow Regulation (EC) No 4/2009, the EU Maintenance Regulation. Which maintenance law applies follows its own connecting rules. Parental custody and contact: under Brussels IIb the courts at the child's habitual residence regularly have jurisdiction.
Matrimonial property and accrued gains: here too there is a separate connecting rule, and it can lead to a law other than the one applicable to the divorce. The pension rights adjustment: entitlements with foreign pension providers cannot readily be divided in German proceedings. One divorce, four areas to settle, in extreme cases four different legal systems. Proceedings planned around the divorce petition alone founder on this.
What makes a divorce with a foreign element complicated
01
The choice of law comes too late
A choice of law under Rome III is a drafting tool for as long as both sides are still speaking to each other. Otherwise the cascade applies, and it can lead to a law neither of them wanted. Deadlines and the division of assets can then turn out differently too.
02
Two sets of proceedings run in parallel
Both sides file for divorce, in two states, without coordination. The court seised later has to stay its proceedings, but the costs have been incurred. That costs weeks, double legal fees in two countries and a forum nobody chose.
03
The foreign documents are incomplete
A marriage certificate in the local language without a translation, a decision without a certificate of finality, a copy without certification, a missing apostille. The court or the registry office comes back with queries, the hearing falls through, and obtaining documents abroad often takes months rather than days.
04
Recognition is not checked
A couple believe they are divorced because there is a judgment in their country of origin. In Germany the declaration is missing. The registry office then refuses a new marriage, and on death a statutory spousal inheritance right appears that nobody had reckoned with.
05
Assets abroad are left out
A flat in Spain, a securities portfolio in Switzerland. If that is not recorded and valued early, it is missing from the division. What is left at the end is a settlement on half the assets and enforcement abroad that is difficult without preparation.
How I proceed
01
Recording the connecting factors, with dates
I record who lived where and when, month by month: both spouses' places of residence, nationalities, the place and date of the marriage, where the children live, and the location and type of the assets.
02
Weighing jurisdiction against applicable law
Which courts have jurisdiction, which law would apply, how long it takes. You receive a comparison with the advantages and disadvantages and a clear assessment of where the time pressure lies.
03
Organising documents, translations and apostilles
Public documents coming from abroad frequently need an apostille under the 1961 Hague Convention. Foreign-language documents need a certified translation by a translator authorised in Germany.
04
Conducting the proceedings and involving foreign advisers
I conduct the proceedings and correspond in German and in English. Where foreign law is needed, I bring in colleagues on the ground and take over the coordination.
A situation that arises regularly
01
Married abroad, lived in Germany
One spouse has returned to their country of origin, and the assets include a property there and shares in a German company. The first task is to determine both parties' habitual residence and to examine which courts would have jurisdiction. Then comes the decision whether a choice of law is achievable.
Office in Cologne, proceedings across borders
My office is at Jakordenstrasse 8 in 50668 Cologne, a few minutes from the main station. Anyone coming from Cologne or the surrounding area, from Leverkusen, Bergisch Gladbach, Bruehl, Huerth, Kerpen or Frechen, is usually glad to sit down in person to record the connecting factors. Everything else runs by video or phone, in German and in English.
Which family court conducts your proceedings follows the rules on local jurisdiction in the individual case and not the seat of my office. I can therefore represent you even where the court is not in Cologne. What else I handle with a foreign element is set out on the overview page for international family law in Cologne.
MORE TOPICS
More on international family law
YOUR QUESTIONS
Frequently asked questions
Several courts can have jurisdiction at the same time. Within the EU, Article 3 Brussels IIb opens, among others, the habitual residence of both spouses, the last joint residence if one still lives there, the respondent's residence and common nationality. There is no order of precedence. If both sides file, the court seised first conducts the proceedings. For third states, separate jurisdiction rules apply.
The applicable divorce law is determined by the Rome III Regulation, not by nationality alone. If you have made no choice of law, the law of your common habitual residence when the court is seised applies, then that of the last common residence if it is no more than a year ago and one spouse still lives there, then common nationality, and finally the law of the court seised.
Yes, but not freely. Under Article 5 Rome III the options are: the law of your common habitual residence, of your last common residence if one of you still lives there, the law of a spouse's nationality, and the law of the court seised. The agreement has to be in writing, dated and signed by both. In Germany notarial recording is provided for. Making a choice of law early makes sense.
If the decision comes from another EU member state other than Denmark, it is recognised under Brussels IIb without any special procedure. In all other cases you need recognition by the state justice administration of the federal state in which one spouse has their habitual residence. What has to be produced is regularly the decision with a certificate of finality, the marriage certificate, certified translations and, depending on the state of origin, an apostille or legalisation.
I bill by time, at an hourly rate of 280 euros plus 19% VAT, and you receive an invoice with a detailed record of the work done. The statutory fees under the German Lawyers' Fees Act (RVG) form the minimum. Billing through legal expenses insurance is possible. As a rule the insurer only pays the statutory fees; you bear the difference to the hourly fee. You submit the request for cover yourself.
Have a divorce with a foreign element examined
If proceedings have already been filed abroad, or you are considering where to file, timing counts. Bring to the first appointment whatever documents and residence details you have. I advise throughout Germany, by video or phone, in German and in English.