International divorce
Which Law Applies to Your Divorce?
As soon as your marriage has a cross-border element, one thing is no longer a given: that German law applies. Yet which law is applied to your divorce often decides the outcome – from country to country, not only maintenance and the division of assets differ, but sometimes the very preconditions of the divorce. With experience from over 150 cases, many of them international, we clarify this question early, before facts are created.
The Essentials at a Glance
- With a cross-border element, German law does not apply automatically.
- In the EU, the applicable divorce law follows the Rome III Regulation.
- A cascade of connecting factors decides – above all habitual residence, then nationality.
- Rome III applies universally: even the law of a non-EU state can apply.
- A choice of law is possible within limits – in Germany it must be notarised.
- Which law applies is a different question from which court has jurisdiction.
Why the Question Decides the Outcome
The applicable law determines more than many expect. It can influence
- whether and for how long you must live apart before a divorce is possible,
- whether fault plays a role,
- how generous or sparing post-marital maintenance is,
- by which model the assets are divided,
- and sometimes even questions of name and status.
Two couples in an identical situation can therefore part very differently, depending on the applicable law. Those who know the levers can use them.
How the Applicable Law Is Determined
In the participating EU states this follows the Rome III Regulation. If you have made no choice of law, a cascade applies:
- the law of the state where both spouses are habitually resident when the court is seized; failing that
- the law of the state of the last common habitual residence, if one of you still lives there and you left no more than a year ago; failing that
- the law of the state of which both are nationals; failing that
- the law of the court seized.
Importantly, Rome III is universally applicable. The result can therefore be the law of a state outside the EU, which a German court then applies.
An Example
An Italian national and a German national have lived together in Munich for years. Absent a choice of law, the first step applies the law of the common habitual residence – that is, German law, even though one spouse is Italian. If one moves abroad shortly before the proceedings, the picture can change – a reason to plan the order of steps carefully.
Scheideweg
A choice of law made early decides, at a quiet crossroads, which path your divorce will follow.
You Can Choose the Law
Rome III allows a choice of law within certain limits – for example the law of a spouse's habitual residence or nationality. In Germany this agreement must be notarised. It is most effective when made early – ideally in a marital agreement, before a conflict arises.
When Foreign Law Applies
If foreign law applies, the German court applies it – but must establish its content, often with the help of expert opinions. That can lengthen the proceedings and makes forward planning all the more important. We set the right course early so you are not surprised by the requirements of a foreign law.
Law Is Not the Same as Court
Which law applies is a different question from which court has jurisdiction. The two must be considered together, because the competent court often co-determines, through the cascade, which law applies. Choosing the forum wisely therefore often influences the applicable law too.
How We Support You
In the initial consultation we record your residences, nationalities and existing agreements. From this we derive which law is likely to apply and whether a choice of law is possible and advantageous for you. We then align the question of the applicable law with the choice of court and set the order of steps that gives you the most room – explained clearly, in English and German.
Frequently Asked Questions
Does German law apply automatically because we live in Munich?
Not automatically – but the common habitual residence in Germany is the first step and thus a strong connecting factor. We assess your case specifically.
Can we agree on German law?
Within the limits of Rome III a choice of law is possible, e.g. the law of habitual residence or nationality. In Germany it must be notarised.
Will a German court really apply foreign law?
Yes. The court then establishes the content of the foreign law, often via an expert opinion.
Does fault matter?
In German law, in principle no – but in some foreign systems it does. Which law applies can therefore make a difference here too.
Can we still choose the law during the marriage?
Yes, a choice of law is possible before and during the marriage – the earlier, the more clarity.
Does the law change if one of us moves?
It can, because habitual residence plays a central role. That is why timing matters.
Your next step
Tell us about your situation
We listen, make sense of it and show you your options — confidential and on equal terms. Your enquiry is free and without obligation.