Divorce abroad

Getting divorced abroad involves legal and organisational challenges. Which authority is responsible, which law applies, and how can you have your divorce recognised in Germany? This article provides an overview of the key steps, documents, and procedures to make the process as smooth as possible.

For people who have emigrated overseas, it can sometimes be obvious to file for divorce in the country of their new residence. In most countries, the habitual residence determines which court has jurisdiction and which law is applied – regardless of where the marriage was entered into. This means that if both spouses live in Spain or Australia, for example, they will usually be divorced according to the laws of the respective country. If only one of the spouses lives abroad, the divorce can be filed in either country. Within the EU, the Brussels IIb regulation stipulates that the court of the country in which the divorce is first filed has jurisdiction.

While the court of the country of residence has jurisdiction, the law of that country is not always applied. Within the EU, the so-called Rome III Regulation regulates which law applies to international divorces. This regulation allows you, for example, to choose the law of a country with which you or your partner have a close connection (e.g. German law in the case of German citizenship).  

This may be regulated differently in countries outside the EU. Some states apply only their own law, others take into account the law of the country of origin of the parties involved.

Divorce requirements can differ significantly from country to country. Some do not have a mandatory year of separation, for example, while others implement different provisions regarding alimony or the division of assets, or have specific cultural requirements that must be taken into account.

It is therefore crucial to find out about the local laws in advance.

The process involved in getting divorced overseas depends largely on the legal regulations of the respective country. While some countries allow for quick, unbureaucratic procedures, others require long separation times or extensive evidence. The question of whether a court has to be involved in the process or whether out-of-court agreements are sufficient also varies greatly.

Typically, however, you will go through the following steps when you get divorced abroad:

Petition: The petition for divorce is filed with the competent authority or court in the relevant country. This usually requires documents such as a marriage certificate and proof of identity. Generally speaking, a marriage is valid if it complies with the formal requirements of the country in which the marriage took place. However, before filing a petition, you should check that your marriage is recognised in the country in which you are filing.

Verification of jurisdiction: The court examines whether it has legal authority to handle the divorce. Criteria can be the residence or nationality of the spouses.

Separation period: Some countries require a verifiable separation period before the divorce can become final. Others may not insist on this at all.

Court hearing: In many countries, the spouses have to be heard in court to clarify maintenance claims, custody or property matters.

Depending on the country and the complexity of the situation, the process can take anywhere from a few weeks to several years. It is therefore advisable to find out about the country-specific regulations at an early stage and to seek legal support where necessary.

Getting divorced abroad requires careful planning and preparation. In addition to the choice of the competent court, the necessary documents, translations and certifications play a crucial role. It is essential to clarify in advance what documents you will need and whether these have to be submitted in the official language of the country in question. The cost and time required can also vary considerably depending on the country. The most important documents and steps are often:

• Marriage certificate
• Proof of residence
• Proof of identity
• Proof of separation: In some countries, you must demonstrate that you are already living apart.
• Certifications and legalisations (apostille): To confirm the authenticity of documents, especially in international proceedings.
• Translations: Officially recognised translations of all relevant documents into the local language.

A divorce finalised abroad is not automatically valid in Germany. Recognition is required to ensure that the divorce is also legally binding under German law. This is particularly important if one of those concerned wants to remarry or change their name, or if legal matters such as alimony claims and custody arrangements need to be resolved. Without recognition of the divorce, the marriage will continue to be considered legally valid in Germany. Divorces in countries within the EU (except Denmark) or the home country of both spouses are recognised without any additional procedure.

The procedure for recognition in Germany of an overseas divorce includes the following steps:

• Application: The application for recognition is submitted to the competent state justice administration or the Higher Regional Court
• Required documents:
  
  
  • Application for recognition of a foreign ruling in matrimonial matters
  • Divorce decree: original or certified copy
  • Copy of marriage certificate
  • Proof of nationality: For example, a copy of the passport of both spouses.
  • Translations: All foreign-language documents must be translated into German.
  • Proof of income: A statement of income of the person making the application.
     
• Examination of the documents: The authority examines whether the foreign divorce proceedings comply with the essential principles of German law, such as respect for the right to be heard and a proper court decision.
• Decision: After successful examination, recognition is granted, and the divorce is also considered legally binding in Germany.

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