GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
In any case, the recognition of a foreign religious mar ‑ riage and/or divorce is excluded if it would lead to a result that is obviously incompatible with significant principles of German law, particularly fundamental rights (so-called ordre public). Other Processes in Relation to Ending a Marriage Apart from divorce, a marriage may be dissolved through annulment by judicial decision. The grounds of annulment are very strict – eg, if a spouse was induced to enter into the marriage by deceit or threat (Section 1313 of the BGB) – so the chances of annul ‑ ment are very low. There are no formal separation proceedings in Ger ‑ many. 1.2 Choice of Jurisdiction in Divorce Proceedings Jurisdictional Grounds Jurisdiction is based primarily on the grounds of Council Regulation (EU) No 2019/1111 of 25 June 2019 (Brussels IIb Regulation (recast)), which has been applicable in all EU member states except the Kingdom of Denmark since 1 August 2022. According to Article 3 of this Regulation, Germany, as a member state, has jurisdiction for divorce proceedings if: • the spouses are habitually resident in Germany; • the spouses were last habitually resident in Ger ‑ many, if one of them still resides there; • the respondent is habitually resident in Germany; • in the event of a joint application, either of the spouses is habitually resident in Germany; • the applicant is habitually resident in Germany and resided there for at least one year immediately before the application was made; • the applicant was habitually resident in Germany for at least six months immediately before the application was made and is a German national; or • both spouses are of German nationality. If no court of an EU member state has jurisdiction according to the Brussels IIb Regulation, German law determines jurisdiction: conforming to Section 98 of the Family Procedure Act (FamFG), a German court has jurisdiction if one of the spouses is of German
nationality. It is disputed whether the Brussels IIb Regulation also applies to same-sex spouses. Concepts of Habitual Residence and Nationality Within the Brussels IIb Regulation, jurisdiction is pri ‑ marily governed by the principles of habitual residence and nationality. However, the Brussels IIb Regulation itself does not define “habitual residence”. The courts have to determine the habitual residence within the meaning of the Regulation, considering the individual circumstances. In general, the habitual residence is understood to mean the permanent and usual centre of a person’s life. This is determined according to the following criteria. • Where is the person permanently or predominantly present? • Where is the person integrated into family and social life? • Is there an intention to return to the previous coun ‑ try? The European Court of Justice has clarified that a per ‑ son can have only one habitual residence. In contrast to habitual residence, the nationality of a spouse is easier to examine. Nationality is determined by the law of the country concerned and does not have to be determined autonomously by the court. Challenging Jurisdiction A party to divorce proceedings can contest jurisdic ‑ tion if the court seised has no jurisdiction according to the rules mentioned above. The court has to examine its jurisdiction ex officio. According to Article 20 of the Brussels IIb Regulation, a German family court shall stay the proceedings if divorce proceedings were brought before the court of a member state first. In matrimonial matters, the spouses cannot agree on the place of jurisdiction under the Brussels IIb Regulation.
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