The recognition of foreign divorce judgments and the enforcement of foreign alimony judgments in Germany1 Comment
A. Recognition of Foreign Divorces in Germany
Regarding the recognition of foreign divorces in Germany, one always has to distinguish between the recognition of divorce judgments from EU Member States and the recognition of divorce judgments from states that are not covered by the Regulation (EC) No 2201/2003 (hereinafter referred to as „third countries“).
I. Recognition of foreign divorce judgments from third countries in Germany
Pursuant to s 107 para 1 sentence 1 FamFG (Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction) divorce judgments from third countries will be recognized in Germany if the department of justice of the relevant German federal state (Landesjustizverwaltung) decides, that the requirements of the recognition are met.
This means, that divorces from third countries will not be recognized automatically in Germany, nor can the question of the recognition be decided as a preliminary issue by a German court (for examle in an alimony case).
As said before, responsible for the recognition of divorces in Germany is the department of justice of the relevant German federal state (Landesjustizverwaltung). This is the German federal state, where the spouse applying for the recognition ist habitually resident.
According to s 107 para 3 sentence 1 FamFG the departments of justice of the German federal states can transfer their authority to recognize foreign divorces in Germany to the presidents of the Higher regional Courts (Präsidenten der Oberlandesgerichte).
However, in most federal states of Germany the departments of justice have exercised their right to transfer their authority to recognize foreign divorces to the presidents of the Higher regional Courts (Präsidenten der Oberlandesgerichte).
The recognition of a divorce takes place only on request by one of the spouses.
Together with the application the following documents need to be submitted to the competent authority:
– Valid passport or identity card
– Foreign divorce certificate
– Marriage certificate
– Proof of income of the applicant
– Certificate of residence of the applicant
– Legalization of the foreign documents
– Certified Translation of the foreign documents
The competent authority will then examine, if there are any obstacles to the recognition of the divorce (§ 109 FamFG).
According to s 109 FamFG the foreign divorce will for example not be recognized, if the divorce judgment violates German basic law (the German constitution).
If the divorce judgment has been made by a court of a foreign state of which both spouses were nationals at the time of the decision (so called „Heimatstaatentscheidung“) it is exempt from the formal recognition according to s 107 FamFG.
II. Recognition of divorces from EU Member States in Germany (according to Regulation (EC) No 2201/2003 – (hereinafter referred to as „EheVO“))
Divorce judgments from member states of the EU (for example Belgium, Finland, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Austria, Portugal, Spain, Sweden, UK, Estonia, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia , Czech Republic, Hungary, Cyprus, Bulgaria or Romania) are recognized in Germany without any special procedure being required (pursuant to Article 21, section 1 EheVO).
This means that such divorces are recognized automatically as long as the automatic recognition is not excluded from because of any of the grounds mentioned in Article 22 EheVO.
Despite the automatic recognition under Regulation (EC) No 2201/2003 a party may nevertheless exert a recognition procedure if the party can show probable cause that the party has a special interest in that procedure.
Responsible for this recognition process is then the local family court.
B. The Enforcement of foreign alimony judgments (spousal support or child support orders) in Germany
The enforcement of foreign alimony judgments from courts of EU Member states in Germany is governed by the Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations („the Maintenance Regulation“).
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