GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings Jurisdictional Grounds
Financial Claims After Foreign Divorce If a German court has jurisdiction, it hears financial claims after a foreign divorce as long as there is no prior decision nor agreement on a financial claim that must be recognised in Germany. 2.2 Service and Process in Financial Proceedings Service After the petition for financial proceedings has been filed, the court usually requires an advance payment for court fees to be made. After this payment, the court serves the petition on the other party, who is given the opportunity to comment on the petition. In Germany, service is effected by registered letter. Service by e-mail is not possible. If the other party lives abroad, the applicable rules for service depend on the country (eg, whether the service takes place in a member state of the EU or not). The timeframe of service also depends on the country, and may take several months. Process and Timeline There is no predictable timeframe for financial pro ‑ ceedings. In particular, financial proceedings can take a long time if a claim for disclosure is first asserted (especially if this claim has to be enforced abroad) or if assets have to be evaluated by an expert (eg, The family court will not address the division of assets upon divorce (eg, claims concerning the matrimonial regime or other financial claims) unless one of the spouses files a motion. In this case, the court needs to decide within the divorce proceedings. Besides this, the only decision the family court has to give ex officio upon divorce is the division of pension rights acquired during the marriage. Financial Orders German law distinguishes between the individual con ‑ sequences of divorce. This means that proceedings must be conducted separately, and the jurisdiction as well as the applicable law must be assessed separate ‑ ly. Regarding assets, the court can decide in separate companies, real estate). 2.3 Division of Assets Petition for Division of Assets
From a German perspective, jurisdiction in matters of the matrimonial property regime is determined by Council Regulation (EU) 2016/1103 of 24 June 2016, which applies to proceedings initiated on or after 29 January 2019. According to this Regulation, Germany, as a member state, has primary jurisdiction for divorce proceedings in the following circumstances: • if a German court is seised to rule on an applica ‑ tion for divorce (Article 5 (1)); • if a court is seised to rule on an application for divorce and the spouses agree on the court’s jurisdiction under the specific conditions (Article 5 (2)); or • in the case that there are no divorce proceedings pending at a court of a member state (Article 6) and the spouses did not agree on a jurisdiction based on Article 7: (a) if both spouses are habitually resident in Ger ‑ many at the time the court is seised or, failing that: (b) if the spouses were last habitually resident in Germany, insofar as one spouse still resides in Germany at the time the court is seised or, failing that: (c) if the respondent is habitually resident in Ger ‑ many at the time the court is seised or, failing that: (d) if the spouses have common German national ‑ ity at the time the court is seised. Challenging Jurisdiction A party to financial proceedings can contest jurisdic ‑ tion. Within Council Regulation (EU) 2016/1103, juris ‑ diction may be established based on the appearance of the defendant if the defendant does not contest the jurisdiction (Article 8). The court has to examine its jurisdiction ex officio. According to Article 17 of Council Regulation (EU) 2016/1103, a family court shall stay the proceedings if financial proceedings were brought before the court of another member state first.
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