Marriage and Divorce
Foto eines lachenden Babys, © www.colourbox.com
Distances are diminishing as ever more networks span the globe. As globalization progresses, modern means of transport and communications technologies are bringing people closer together, a fact which is also reflected in the growing number of “international” marriages.
There are many reasons why bi-national couples marry outside of Germany.
In addition, many German couples wish to get married when on holiday, which often means abroad. Yet whilst the lights of Las Vegas, the romance of Venice or the tropical palms of a South Sea island beach do provide an unforgettable setting, it must be remembered that marriage is, first and foremost, a legally binding contract which has many consequences and that additional requirements may have to be met if the ceremony is performed abroad.
Validity of the marriage
There is no special procedure or authority empowered solely 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 thus 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.
Foreign marriage certificates are often only recognized by domestic authorities or courts when their authenticity or evidentiary value has been determined in separate proceedings. A number of standard international procedures have been developed for this purpose. For further information on these go to “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 (0) 221-758-4999, fax. +49 (0) 221-758-4829) (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 and/or translated, and to agree a date for the wedding.
Marriages by German consular officers
Consular officials at German missions (Embassies and Consulates-General) do not solemnize marriages.
Nowadays it is possible in most countries to be married by the local authorities or persons authorized to solemnize marriages. Binding information on the precise formalities can only be obtained from the local authorities or persons concerned.
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 Berlin, which is available online. 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.
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 606a 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: For matrimonial matters in EU states (other than Denmark), it is no longer the nationality of the spouses that is relevant but their place of permanent residence. Only if both spouses have German nationality can they choose to pursue their case before the German courts, regardless of where they are resident (Council Regulation (EC) No 2201/2003 (Brussels IIa) of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000, Official Journal of the European Communities 2003 No L 338, p. 1 et seq., online at www.eur-lex.europa.eu). This Regulation has applied since 1 March 2005 in all EU Member States with the exception of Denmark. It also applies in the 10 Member States that joined the EU on 1 May 2004. As its name suggests, this Regulation repeals and supersedes Council Regulation (EC) No 1347/2000 of 29 November 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 (Brussels II), which entered into force on 1 March 2001. You should thus also take note of the transitional provisions.
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.
If, when abroad, you need a local solicitor to liaise with your lawyer, the German missions abroad or the Foreign Office helpline will be happy to send you a list of solicitors upon request.
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.
Only once the foreign judgement has been recognized by the department of justice of the relevant German federal state (Landesjustizverwaltung) may the courts throughout Germany consider the marriage to be truly dissolved.
Orders in matrimonial matters which were made in an EU state (other than Denmark) will as a rule be recognized in the other Member States without requiring any separate judicial proceedings for recognition. The nationality of the parties is not relevant. Nor are any special proceedings now required for amending German civil status records, provided the judgement is absolute and final and not subject to any appeals in the Member State in which it was passed. Recognition proceedings are thus not necessary for judgements from EU Member States (with the exception of Denmark). Recognition will only be denied on the ground of major procedural irregularity or for reasons of German public policy (section 328 (1) 4 of the German Code of Civil Procedure).
The EU Regulation (No. 2201/2003 of 27 November 2003) does not however prevent you from seeking a court order on the recognition or non-recognition of a foreign judgement, if you have a interest in so doing.
For a divorce to be recognized, 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 (see Articles 37 and 39 in conjunction with Annex 1 to the EU 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 not mentioned above, formal recognition of foreign judgements in matrimonial matters must still be obtained pursuant to article 7, section 1 of the Family Law Amendment Act (Familienrechts-Änderungsgesetz). The Land departments of justice 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.
It is the department of justice of the Land where one of the spouses has his/her habitual abode that has 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 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 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 department of justice. Applications must be made on an official form, which can be obtained from the 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, which is also a source of 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 department of justice, 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 as regards the statutory rules of inheritance. There are thus many reasons for having a specialized agency deal with the recognition of foreign divorces with final and binding effect for all German authorities and courts.
The recognition by the Land departments of justice is however limited 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 departments of justice. If any of these matters is in dispute or in need of further action in Germany, you must approach 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.
Information on obtaining these foreign documents can be found on the websites of the German missions abroad. If you cannot find the information you need online, please make direct contact with the German mission in the relevant country.
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.
German divorces that fall under Council Regulation No. 2201/2003 (Brussels IIa) are an exception to this rule. They will as a rule be recognized in other EU Member States (excluding Denmark), without any additional judicial proceedings.
EU Member States (excluding Denmark) accept the divorce decree and a special certificate obtained from a court or authority in the Member State where the divorce was obtained as proof that you have been divorced. This certificate must take a certain form (see Articles 37 and 39 in conjunction with Annex 1 to the EU 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.
If, when abroad, you need a local solicitor to liaise with your lawyer, the German missions abroad or the Foreign Office helpline will be happy to send you a list of solicitors upon request. Names of solicitors abroad can also be obtained from the German Lawyers Association (www.anwaltauskunft.de) and through the online search service, www.anwalt-suchservice.de.
As a first step to learning more about these complex issues, 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 practitioners who specialize in foreign law.
Just as the German missions abroad can provide information about the recognition of foreign divorces in Germany, the foreign missions in Germany can often supply information about procedures for the recognition of divorces in their sending states.