International divorce
Divorce of a Binational Marriage
When spouses hold different nationalities, a divorce often puts two countries and two legal systems in play. Where and under which law you divorce can decide maintenance, the division of assets and even recognition. What surprises many: what usually counts is not the passport but where you live.
The Essentials at a Glance
- Two nationalities often mean two possible countries for the proceedings.
- What matters is usually habitual residence, not the passport alone.
- Country and law strongly affect maintenance and the division of assets.
- The property regime can differ considerably.
- Recognition of the divorce in both countries is important.
- A marital agreement can fix the choice of law and property regime in advance.
Which Country, Which Law?
These are the two key decisions – and they do not necessarily depend on your nationality but above all on habitual residence. Which court has jurisdiction follows, in the EU, Brussels IIb; which law applies follows Rome III. Often both countries have jurisdiction – then it counts who acts first.
The Property Regime Can Differ
An often underestimated point is matrimonial property law. While in Germany the community of accrued gains is the statutory regime, other countries have communities of property or separation of property as the default. Which property law applies decides how assets are divided – and can shift the result considerably, for example with a property or a business.
Typical Points of Dispute
In practice it often concerns
- differences in maintenance (duration, amount, conditions),
- the property law and thus the division of assets,
- the recognition of the divorce in both home countries,
- and the children, where one parent wishes to move abroad.
The earlier these points are considered, the more easily they can be resolved amicably.
Recognition in Both Countries
A binational divorce should hold up in both countries concerned. Within the EU, divorces are usually recognised without a special procedure; with a non-EU country, formal recognition may be needed. We factor this in from the start so your marital status is consistent everywhere.
Neue Farben
Agreed early, a marital agreement turns two legal systems into one clear path forward.
A Marital Agreement Settles Much in Advance
For binational marriages in particular, a marital agreement is valuable: it can fix the choice of law and property regime in advance and defuse later conflict. It is still possible during the marriage – and creates planning security for both sides. If your children have ties to two countries, questions of cross-border custody are added.
An Example
A German national and a French national live with their children in Munich. If the couple separates, both Germany and France are often conceivable – as a forum and for the applicable law. While German law has the community of accrued gains, a different property regime can lead to a noticeably different distribution. Whoever assesses the situation early can secure the more favourable country and law – and avoid the other side creating facts first.
How We Support You
For binational marriages, the real value lies in thinking two systems together rather than tackling them one after another. Which country you choose influences which law applies; which law applies influences maintenance and property law; and in the end the divorce must be recognised in both countries. Anyone who looks at only one of these levels risks giving away room elsewhere. We take in your whole constellation – residences, nationalities, assets, children and existing agreements – and develop a strategy that holds in both countries. We also keep the human side in view: in binational families in particular, a calm, amicable solution is often the best way to preserve bonds, not least for the children. Where an out-of-court settlement is possible, we seek it; where your rights must be defended firmly, we do so just as decidedly. And where it helps, we coordinate with colleagues in the other country so that the result works on both sides of the border.
Frequently Asked Questions
Does our nationality or our residence count for the divorce?
Primarily habitual residence. Nationality can be relevant in addition, especially where both hold the same one.
Can we choose which country to divorce in?
Often several countries have jurisdiction – order counts. We check which is more favourable.
Will our divorce be recognised in both countries?
Within the EU usually straightforwardly; with a non-EU country a recognition procedure may be needed. We clarify it early.
Which property regime applies to us?
It depends on the applicable law and any agreements. The models differ markedly from country to country.
Should we conclude a marital agreement even though we are already married?
Yes, that is still possible and often sensible, especially for binational marriages.
What if my partner returns to their home country?
Then jurisdiction and applicable law can change. Talk to us early so we can set the course correctly.
Does a foreign marriage contract apply in Germany?
Not automatically. Whether and how it takes effect depends on form and content – we review it in the individual case.
Is our marriage abroad recognised in Germany?
As a rule yes. That is separate from the question of the divorce and its recognition.
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