Enforcement law: The recognition of foreign divorces and the enforcement of foreign maintenance titles in Germany

A. Recognition of foreign divorces in Germany

With regard to the recognition of foreign divorces in Germany, a fundamental distinction must be made between the recognition of divorces from EU member states and the recognition of divorces from states not covered by Regulation (EC) No. 2201/2003 (hereinafter referred to as third countries).

I. Recognition of foreign divorces from third countries

Pursuant to Section 107 (1) sentence 1 FamFG, divorces from third countries are only recognised if the state justice administration has determined that the requirements for recognition are met.

This means that divorces from third countries cannot be recognised automatically, nor can the question of recognition be decided as a preliminary issue by a court dealing with the matter.

Pursuant to Section 107 (2) sentence 1 FamFG, the state justice administration of the state in which the spouse has their habitual residence is responsible for recognising divorces.

Pursuant to Section 107 (3) sentence 1 FamFG, the state governments may transfer the powers vested in the state judicial administrations under this provision to one or more presidents of the higher regional courts by statutory order.

Most of the federal states have made use of this authorisation, so that the presidents of the higher regional courts are generally responsible for recognition.

Divorce is only recognised upon application. According to § 107 Para. 4 FamFG, only those who can credibly demonstrate a legal interest in the recognition are entitled to file an application.

In addition to the application, the following documents must always be enclosed:

- Valid passport or identity card

- Divorce decree or divorce certificate

- Marriage certificate

- Proof of income of the applicant

- Certificate of residence of the applicant

- Notarisation of foreign certificates and documents

- Translation of foreign documents

As part of the decision to recognise the divorce, the competent authority checks whether there are any obstacles to recognition (Section 109 FamFG).

In accordance with § 109 FamFG, recognition is excluded,

1. if the courts of the other state do not have jurisdiction under German law;

2. if a party who has not made a statement on the substance of the case and invokes this fact has not been duly notified of the document initiating the proceedings or has not been notified in sufficient time to enable him to exercise his rights;

3. if the decision is incompatible with an earlier foreign decision issued or to be recognised here or if the proceedings on which it is based are incompatible with proceedings that were previously pending here;

4. if the recognition of the decision leads to a result that is manifestly incompatible with fundamental principles of German law, in particular if the recognition is incompatible with fundamental rights.

So-called home state decisions are excluded from the recognition obligation in accordance with Section 107 (1) sentence 2 FamFG. These are divorces in which the spouses divorce in the state of which they are both nationals.

II Recognition of divorces from EU Member States (pursuant to Regulation (EC) No 2201/2003 - Matrimonial Property Regulation)

Divorces that have taken place in a member state of the EU are recognised in accordance with Art. 21 Para. 1 of the Marriage Regulation without the need for a special procedure.

This includes divorces from Belgium, Finland, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Sweden, Spain, the United Kingdom, Estonia, Latvia, Lithuania, Malta, Poland, the Slovak Republic, Slovenia, the Czech Republic, Hungary, Cyprus, Bulgaria and Romania.

This means that such divorces are automatically recognised as long as recognition is not excluded on one of the grounds listed in Art. 22 of the Marriage Regulation.

A ground within the meaning of Art. 22 Marriage Ordinance is given, for example, if one spouse was not heard because the document initiating the proceedings was not served on him or her at all.

Despite automatic recognition under Regulation (EC) No 2201/2003, a party may nevertheless initiate a recognition procedure if it has an interest in recognition.

The locally competent family court is then responsible for this recognition procedure.

B. Enforcement of foreign maintenance titles in Germany

Until now, the enforcement of maintenance titles within the EU was governed by the Brussels I Regulation.

Since 18 June 2011, Council Regulation (EC) No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations - EU Maintenance Regulation - has been applicable to the enforcement of maintenance titles.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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