International-related marriages often beg the question which jurisdiction is applicable in case of a divorce. When it comes to a conflict of laws, the applicable law in most countries is regulated by International Private Law. In Germany, those regulations can be found from several sources.
The German International Private Law distinguishes between the general requirements of marriage, the general effects of marriage and the matrimonial property regime. When it comes to a divorce, the applicable jurisdiction is determined by regulations of the European Union.
Article 13 of the Introductory Act to the German Civil Law (EGBGB) regulates the general requirements of marriage, meaning the legal requirements that need to be fulfilled in order to be entitled to marry.
If the marrying couple are of different nationalities, the couple must meet the legal marriage requirements of both nationalities (Article 13 EGBGB). In addition, the formal requirements of a marriage in Germany still have to meet the formal requirements determined in the German law (Sections 1310 – 1312 BGB).
Example 1: A Thai couple, both 18 years old, wants to marry in Germany. In front of the German authorities, they need to proof that they meet the marriage requirements made by Thai law. According to Thai Law, each spouse needs to be at least 20 years old in order to get married without parental consent (Section 1435 of the Thai Civil Code). However, in Germany, according to Section 1303 BGB, spouses need to be at least 18 years old in order to get married. Section 1309 BGB provides still an opportunity for the minor spouses to get married in Germany: If they prove by official certificate, that under Thai law they are allowed to marry, they meet the requirements of German law. The Thai couple could do so by proving parental consent, Section 1436 TCC. [Article 13 I, III EGBGB]
Example 2: A Thai couple of the same sex wants to marry in Germany. Even if gay marriage is allowed in Germany, they can’t get married: Since the gay marriage is prohibited by Thai laws, the general requirements of marriage according to the Thai jurisdiction are not met. [Article 13 I, III EGBGB]
Example 3: A Jordanian couple wants to marry in Germany. The future husband is already married to another wife. Even if the spouses meet the requirements for a marriage according to Jordanian law (where bigamy is allowed), they cannot get married in Germany: According to 1306 BGB, in Germany bigamy is prohibited. According to Section 1314 BGB, there is no way for the Jordanian couple to circumvent this prohibition. [Article 13 III EGBGB]
In summary when it comes to the general requirements of marriage, the marrying couple are both subject to both foreign and German law. This is to prevent marriages that are accepted in Germany, but not in the home country of the particular spouse.
The applicable law when it comes to the general effects of a marriage is determined by Article 14 EGBGB. General effects means the duties that arise from marriage.
For example, according to Section 1353 I S.2 BGB and similar to Thai law (Section 1461 of the Thai Civil Code), spouses in Germany are obliged to follow their connubial duties. They are obliged to take responsibility and support each other. They need to be faithful and show mutual consideration. They have to assist each other to provide for the necessities of living such as shelter, food, and clothing.
In Germany, most duties that are stated that are part of the marriage relationship cannot be enforced by law. For example, the marital duties also contain the duty for sexual intercourse. The violation of this duty cannot be enforced by law (Section 120 III FamFG), even if it can be a reason leading to divorce.
In cases where the spouses are of the same nationality, the general effects of marriage are determined by the law of their home country. A German court will then only apply the foreign jurisdiction of their home country.
If spouses belong to different nationalities, the general effects of marriage are determined by the jurisdiction in which the spouses have or had their last ordinary residence during marriage. If they change the ordinary residence to another country, the effects of the marriage are then determined by the jurisdiction of the new country. According to the German law, spouses can settle the place of jurisdiction according to the general effects of marriage only in rare exceptional cases (Article 14 III EGBGB). In those exceptional cases, the spouses can’t choose the jurisdiction freely – they can just choose in between the jurisdictions they belong to according to their nationality.
Example 4: A Thai couple lives and marries in Germany. The general effects of marriage are determined by Thai law. Thai law is also applicable, if one spouse takes out the German citizenship during marriage. [Article 14 I Nr.1 EGBGB]
Example 5: A mixed Thai-German couple lives and marries in Germany. The general effects of marriage are determined by German law. If the spouses decide to move to Thailand in order to take ordinary residence there, the general effects will then be determined by Thai law. [Article 14 I Nr.2 EGBGB]
Article 15 EGBGB determines the applicable jurisdiction according to the matrimonial property regime. Property regimes determine how assets and gains are distributed between the spouses during marriage and in case of divorce. According to this section, the applicable jurisdiction is the same as in Article 14 EGBGB, with the only difference that Article 15 refers to the time of contraction of marriage.
However for the matrimonial property regime the spouses can choose the preferred jurisdiction more freely and not only in exceptional cases. The spouses can either choose the jurisdiction that one of the spouses belongs to, or the jurisdiction in which at least one of the spouses has his or her ordinary residence. In regards to some immovables, they can also choose the jurisdiction of the place where the immovable is located.
Example 6: A Thai couple lives and married in Germany. They didn’t make any mutual agreement. The property regime is determined by Thai law. [Article 15 I and Article 14 I Nr.1 EGBGB]
Example 7: A mixed Thai-German couple lives and married in Thailand. They didn’t make any mutual agreement. They move to Germany. In case of divorce, the property regime will be determined by Thai law. [Article 15 I and 14 I Nr.2 EGBGB]
The applicable law when it comes to divorce is regulated by the European Union, which has put in place the so called Rom III – Regulation (VO (EU) Nr. 1259/2010). The regulation has been in force since June 21st 2012. This Statute brings several changes to the applicable law when it comes to divorces in cases with international relations.
According to Article 5 I of the Statute, the spouses willing to divorce can either choose the jurisdiction
- of the country, in which the spouses have their ordinary residence at the time of the choice
- of the country, in which at least one of the spouses recently had their ordinary residence, if one of the spouses still has his or her ordinary residence in this country at the time of choice
- of the home country of one of the spouses
- of the state in which the parties applied to court.
In case the parties did not make a choice of law and jurisdiction, according to Article 8 of the statute, the following jurisdictions are applicable:
- the jurisdiction of the state, in which the spouses had their ordinary residence at the time they applied to court, otherwise
- the jurisdiction of the state, in which the spouses had their ordinary residence recently, in case the residency did not ended one year prior to the appeal to the court and only in case that one of the spouses is still residing in this state, otherwise
- the jurisdiction of the state both spouses belong to at the time of the appeal to the court, or, otherwise
- the jurisdiction of the state, the parties appealed to court.
Example 8: A Thai couple married in Thailand without setting up a mutual agreement. They permanently move to Germany. In case of divorce, German law is applicable.
Example 9: A mixed Thai-German couple married in Thailand without setting up a mutual agreement. They break up. The German spouse moves back to Germany and files for a divorce. Thai law is applicable. The last ordinary residence of the spouses was in Thailand.
When it comes to conflict of laws, finding the applicable jurisdiction is far from easy.
Divorce proceedings are usually settled in the country where the spouses have their residence. Because of the Rom-III Statute, most courts will have to apply to the jurisdiction in which they have their ordinary residence.
However, since the EU-Regulation allows for a freedom of choice, it is advisable to choose the law of the jurisdiction most suitable for the interests of the spouses. In order to find out which law is the most suitable for the parties, it is essential to seek professional legal advice.