International Family Law

In an age of globalisation, more and more families bring together different nationalities. Sometimes not all family members even live in the same country. In such cases, legal questions are governed by international family law and by agreements within the EU or between individual countries. The EU instruments do, however, provide for exceptions, in particular for Denmark.

Dr. Christina Schmidt, attorney at law (Rechtsanwältin), is a specialist in international family law. She advises you thoroughly on this complex area of law and represents you with clear objectives and determination.

International divorces

• The competent court
• The applicable law
• International recognition of divorces

01 Issues in international family law

In international family law, two questions always have to be answered:

• first, the courts of which country have jurisdiction, and
• second, which national law those courts must apply.

Depending on the family-law matter at issue, different rules have to be applied. Often only lawyers who specialise in international family law can keep track of the many different statutes.

Some examples of common disputes:

• People entitled to maintenance often find it difficult to enforce their maintenance claim against someone who is living in another country. In Germany, the competent authority and point of contact is the Federal Office of Justice (Bundesamt für Justiz). For EU countries specifically, the EU Maintenance Regulation applies, which makes it easier to enforce maintenance claims throughout Europe.
• The Federal Office of Justice is also responsible for cross-border questions of parental responsibility (Sorgerecht). Germany is a party to several international conventions that lay down rules for cross-border questions of parental responsibility and contact. In practice, international child abduction in breach of custody rights (in particular from Germany to another country) is of great importance. Frequently, however, the issue is also, for example, the recognition and enforcement of foreign custody or contact orders for a child living in Germany.
• Paternity issues – such as the acknowledgement or judicial determination of paternity – also often have a cross-border dimension. They are decided primarily under the law of the country in which the child habitually resides.
• There have been changes in international matrimonial property law. For marriages entered into on or after 29 January 2019, the primary rule is now the law of the country in which the spouses had their first common habitual residence after the wedding. The new European Matrimonial Property Regulations (in German) apply in all EU member states except the UK, Ireland, Denmark, Estonia, Latvia, Lithuania, Poland, Romania, Slovakia and Hungary.

On these and other difficult questions of international family law, Dr. Christina Schmidt can advise you and help you enforce your rights across borders.

02 International divorces

Divorces with a foreign element are a particularly frequent issue in international family law. These are divorces in which at least one spouse is a foreign national or lives abroad. This means that the special rules for international divorces must also be observed for couples of German nationality who live abroad.

2.1. The competent court

Within the EU, which court has jurisdiction for the divorce is determined by the Brussels IIa Regulation (Verordnung Brüssel II a) (in German).

• Under this regulation, a German court has jurisdiction, for example, if both spouses are German nationals, even if they live abroad, or if both are habitually resident in Germany, regardless of whether they are foreign nationals.
• The courts of the country in which the couple last lived may also have jurisdiction, provided one of the spouses still lives there.
• Likewise the courts of the country in which one of the spouses lives, if both file the divorce petition jointly, or
• the country in which the spouse lives against whom the other files the divorce petition.
• The courts of the country in which the petitioner filing for divorce lives may also have jurisdiction. In that case, however, he or she must already have lived there for a minimum period.

Outside the EU, the regulation does not apply. In Germany, the Act on Proceedings in Family Matters (Gesetz über das Verfahren in Familiensachen, FamFG) must then be consulted. It sets out further cases in which German courts have jurisdiction for international divorces.

2.2. The applicable law

Even if a German Family Court (Familiengericht) (in German) has jurisdiction, this does not automatically mean that the divorce is also governed by German law. Instead, the applicable law is determined by the Rome III Regulation (Rom-III-Verordnung) (in German). This applies in Belgium, Bulgaria, Germany, France, Italy, Latvia, Lithuania, Luxembourg, Malta, Austria, Portugal, Romania, Slovenia, Spain and Hungary.

The spouses can choose the law under which they wish to be divorced. They can opt for the law of the country in which they live, in which they last lived together (provided one of them still does so at the present time), of which one of the spouses is a national, or in which the divorce is filed.

If the spouses do not exercise this right of choice, the following order applies: first, the law of the country in which the couple is habitually resident; then that of the country in which they were last habitually resident; after that, the law of the country of which both spouses are nationals; and finally, the law of the country in which the couple files for divorce.

Outside the scope of Rome III, the jurisdiction of a German court is determined by German private international law (Introductory Act to the German Civil Code, EGBGB). Here, too, there are certain options for choosing the applicable law, though within narrower limits. No choice of law is possible under the EGBGB if the spouses have the same nationality, or had it during the marriage and one of them still holds it. In that case, the law of that country applies mandatorily.

Before which court, and under the law of which country, a divorce is conducted is a matter of real importance for couples wishing to separate. Some countries have rules that differ considerably from German law and can work out either more or less favourably. Dr. Christina Schmidt explains the advantages and disadvantages of the countries concerned and advises you on the choice of law.

• In certain countries, a divorce can be cheaper, for example. In Russia, for instance, a divorce can also be obtained at the registry office.
• Separation periods may be shorter or may not apply at all (for example in the Netherlands).
• In some cases, maintenance claims are considerably higher (for example in England) or lower: anyone who, for instance, is found to be at fault in a contested divorce in Austria or Portugal has reduced maintenance claims or none at all! Unlike Germany, both countries still apply the so-called fault principle (Verschuldensprinzip) in divorce.

2.3. International recognition of divorces

Divorces with a foreign element raise an additional problem: they are not automatically recognised across borders. Recognition is, however, extremely important, since otherwise the former spouses will, as a rule, not be able to remarry, for example. A lack of recognition also has other far-reaching consequences. If the couple is still regarded as married in one country, the former spouse remains, for instance, the other's statutory heir. Tax and immigration consequences must also be considered. For these reasons, the advice of an experienced lawyer is essential if there are problems with the recognition of a divorce.

In Germany, foreign divorces must be recognised in formal proceedings in order to be legally valid here as well. The same applies, conversely, to German divorces that are to take effect abroad. The procedure is simplified for states that are party to the Hague Convention. These include, for example, the USA, Thailand and Turkey. A list of all signatory states can be found on the website of the Federal Office of Justice (in German).

An exception is made within the EU. Here, no special recognition procedure is required any longer. Divorces from other EU states are recognised in every member state on presentation of the divorce judgment and a certificate issued by the competent authority of the member state concerned. Denmark is an exception.

No recognition is necessary either in the case of so-called "home state decisions" (Heimatstaatentscheidungen). This term refers to cases in which the marriage was dissolved by a court of the state of which both spouses were exclusively nationals at the time of the divorce. At the time of the divorce, therefore, neither spouse may have held a second nationality or been an asylum seeker.

Dr. Christina Schmidt – your family lawyer in Munich – advises and represents you in all matters of international family law and in divorces with a foreign element. She has many years of experience in cross-border family-law proceedings.