Canada

With the exception of Quebec, private Law in Canada originates from Common Law. A Prenuptial Agreement ( also be called a Cohabitation Agreement or Common-Law Partnership Agreement if the partners are not getting married) is a type of legal document entered into by two people prior to marriage or another form of civil union. Basically, the document lists the assets of each party, and outlines which party should get what in the event of separation or death.

Canadian Law allows prenuptial agreements between spouses. For instance, you will find provisions about them in the Family Law Act ( R.S.O. 1990, c F.3) of Ontario, or in Matrimonial Property Act of Nova Scotia, (Matrimonial Property Act. R.S., c. 275, s. 1).

Because each province has its own particularities, pick a law firm knowing about Canadian Law.

An overview of Pre-Nuptial agreements in Canada by John C. Soby, Q.C. and Alicia T. DuBois of Soby Boyden Lenz

Calgary, Alberta, Canada

The Canadian Constitution and its Effect on Marriage and Divorce

The independent state of Canada was born out of the British Commonwealth and is structured as a federation which is comprised of 10 provinces and 3 territories.[1]  As specified in section 91(26) of the Canadian Constitution Act of 1867, the Parliament of Canada exercises exclusive legislative authority with respect to "Marriage and Divorce".  In accordance with that authority, and as set out in sections 92(12) and (13) of the Constitution Act of 1867, the Parliament of Canada conferred upon the provincial legislatures the exclusive power to enact their own provincial laws in relation to "The Solemnization of Marriage in the Province" and "Property and Civil Rights in the Province", respectively.   The practical implication associated with this division of power between the federal and provincial governments is that while the federal government is the governing authority with respect to divorce, each province and territory has the power to govern its citizens with respect to marriage and property division upon marriage breakdown.[2]  Therefore, it is, for the most part, the provincial and territorial legislatures that govern the citizens with respect to matters pertaining to domestic contracts, including prenuptial agreements.

Statutory Requirements for Prenuptial Agreements in Canada

Federal Law

The Divorce Act is the federal statute that governs divorce across Canada.  The Divorce Act stipulates the grounds for divorce in Canada, provides the basis on which spouses may seek spousal support and, where applicable, governs entitlement for child support, in addition to custody and access rights to children of the marriage.  The Divorce Act briefly addresses domestic agreements and only makes reference to spousal agreements in the context of child support orders, spousal support orders, and the variation of child support orders in sections 15.1(5), 15.2(4), and 17(6.2), respectively.   With respect to spousal support orders, the Divorce Act simply states that an agreement between spouses is a factor that ought to be considered when the court makes a determination regarding one spouse's application for spousal support.  With respect to child support orders, or variations to child support orders, the Divorce Act focuses on ensuring that, if the spouses who have entered into an agreement have children, the best interests of the children are protected in the provisions of the spouses' agreement.

Further in that regard, in conjunction with the Divorce Act, spouses must consider the Federal Child Support Guidelines and adhere very closely, if not precisely, to the child support provisions therein.  In 1997, the federal government put Child Support Guidelines in place for each province and territory and these Guidelines were recently updated in May, 2006.  The Child Support Guidelines basically determine the amount of child support owed by the non-custodial parent to the primary parent based upon the non-custodial parent's gross income and the number of children of the marriage in the care of the primary parent.  The 1997 Child Support Guidelines were put in place in order to address the unpredictable and varying awards of child support the Courts had ordered historically and also to address the great number of single mothers and children that were living in poverty due to the breakdown of marriages.  Overall, the Child Support Guidelines have fulfilled their purpose and therefore, the Canadian courts are very reluctant to deviate from the Child Support Guidelines.  As a result, and as stated in the Divorce Act, while the courts will consider prenuptials that deviate from the Child Support Guidelines, the parties must be able to provide compelling reasons supporting the deviation while also showing the court that the financial needs of the children will be sufficiently met under the proposed provisions of the prenuptial contract.

According to the Divorce Act, the courts may recognize and uphold provisions of a prenuptial contract that address custody of and access to children of the marriage so long as the agreements support the best interests of the children.  For instance, generally speaking, Canadian courts operate on the premise that children benefit from a loving relationship and contact with both parents and that custody/access regimes ought to reflect this premise, with the exception of very severe circumstances of abuse, etc.  Therefore, so long as spouses with children contract in a manner reflective of the importance of both parents' involvement with the children and neither parent has contracted out of his or her rights regarding the children, the federal statute enables the courts to recognize the provisions agreed upon in prenuptial contracts.

Despite the fact that the federal Divorce Act enables courts to consider and uphold contractual provisions regarding child access and custody under certain conditions, a number of the provinces have contradictorily legislated that spouses cannot contract regarding custody or access rights to children of the marriage.[3]  This will be further discussed below.

Provincial and Territorial Law

Despite the fact that each province governs its citizens with respect to marriage and matrimonial property division, the laws across Canada pertaining to matrimonial property division universally operate on the overarching presumption of equitable sharing of marital assets between spouses on marriage breakdown.  The parties are permitted, to a large degree, to contract out of this overarching presumption by creating and executing a valid prenuptial agreement with the aim of predetermining their division of matrimonial property, either in part or whole, in the event of marriage breakdown.[4] While all provinces and territories permit spouses to contract with respect to matrimonial asset and debt division, two provinces and one territory limit that allowance in that spouses are not permitted to contract out of their respective rights to the matrimonial home.[5]

It is unanimously required by all provinces and territories that prenuptial agreements shall be in writing.  Furthermore, with the exception of one province[6], all provinces and territories agree that prenuptial agreements must also be signed by the parties and witnessed.  The Yukon Territory statute further requires that only independent witnesses are permitted to sign prenuptial agreements.[7]

While only five of the Canadian provinces' legislations[8] are worded so to either explicitly require or implicitly suggest that independent legal advice is to be sought by and provided to both parties to a prenuptial agreement, the majority of recently reported cases from across Canada indicate that the courts generally acknowledge and encourage couples to obtain independent legal advice when finalizing prenuptial agreements in order to ensure their agreements are upheld if challenged.[9]

In light of the fact each provincial and territorial government has the authority to determine its own laws regarding marriage and matrimonial property division upon marriage breakdown, there are notable differences between the provinces with respect to what types of provisions within a prenuptial agreement will be recognized and upheld by the courts.  For instance, and further to earlier discussions herein, approximately half the provinces and territories permit couples to contract regarding custody of and access to the children of the marriage while the other half explicitly forbid it.  Similarly, approximately half the provinces legislate that courts can amend and/or deem invalid provisions within prenuptial contracts that are not in the child's best interests.[10]  The Yukon Territory legislation narrows this issue even further in that the courts are able to amend and/or deem invalid any provision that does not reflect the best interest of the children of the marriage with respect to child support payments.

Another marked difference amongst legislation is the classification of specific assets.  With the exception of specific exemptions,[11] all provinces and territories consider property acquired during the marriage such as matrimonial and vacation homes and their contents, vehicles, registered retirement savings plans (RRSP's), investments, and pension plans to be matrimonial property.  There is, however, significant discrepancy amongst provinces with respect to the classification of business assets.  The provinces of Nova Scotia, New Brunswick and Newfoundland, unlike the rest of Canada, have determined and legislated that business assets are not matrimonial property.[12]  This determination has a profound influence on the balance of ‘equitable sharing' for the parties involved because only property deemed to be matrimonial property is to be equally divided between spouses upon marriage breakdown.  That being said, however, simply because the provincial legislation does not classify these assets as matrimonial assets does not necessarily mean spouses are precluded from contracting in a manner that shares business assets equally as part of the matrimonial assets.  These laws do, however, influence the degree of disclosure required between spouses when creating prenuptial contracts.  In addition, if the legislation does not support a couple's equitable consideration of business assets in their contract, there is less likelihood that the courts will deem such a division as fair or reasonable without proof that the business was contributed to equally by both spouses.  In the remainder of Canada's provinces and territories the legislation and case law alike assume that the business assets of one spouse ought to be attributed to both spouses equitably upon marriage breakdown and the onus is significant for one spouse to show otherwise.

The Law of Contract in Canada and Prenuptial Contracts

In addition to case law that aims to interpret legislation, the Canadian courts also adjudicate cases on the basis of the law of contract, as was done prior to the enactment of statutes governing prenuptial agreements and other domestic contracts.  Most commonly, when the judiciary applies the law of contract to prenuptial contracts the contracts are reviewed on grounds relating to misrepresentation and fraud, duress, undue influence, and unconscionability.

Misrepresentation and Fraud

Misrepresentation occurs in the realm of prenuptial contracts when one spouse, while in prenuptial contract negotiations with another spouse, does not provide full or accurate disclosure with respect to his or her assets and/or debts to the other spouse.  While providing false, incomplete or no disclosure at all are grounds to question the validity of a prenuptial contract, the courts have ruled that there is a significant difference between mistakenly providing insufficient disclosure and purposefully providing false information.  While case law indicates the Canadian courts may or may not make allowances for mistakes,[13] the courts are less forgiving with respect to fraudulent misrepresentation.  The law of contracts in Canada supports the rescission of prenuptial contracts under these circumstances because it is recognized that it is improper to uphold contracts in which one spouse intentionally misrepresents his or her financials for the purpose of inducing the other party to enter into a contractual agreement he or she may not otherwise agree to had accurate disclosure been provided.  The remedy under the law of contract for misrepresentation is a claim for damages and/or the rescission of the contract.[14]

The Canadian courts have firmly decided that intentional misrepresentation in the process of creating and finalizing a prenuptial contract is sufficient grounds to rescind the contract in whole or part, especially when the misrepresentation involves financials.  For instance in Le Van v. Le Van[15] the husband and wife entered into a prenuptial agreement and continued to live their lives on the false understanding, as put forth by the multi-millionaire husband, that the parties had very limited means.  Upon the breakdown of the marriage and the wife's learning that the husband had been dishonest with her about his financial status prior to and for the duration of their marriage, the wife challenged the couple's prenuptial contract.  The court found that the husband had materially misrepresented his financial circumstances.  Due to the husband's misrepresentation and also because the wife failed to understand the nature of the contract the parties had entered into, the court determined that the parties were unable to appropriately negotiate the terms of their prenuptial contract.  As a result, the prenuptial contract was rescinded and the wife was awarded a $5.3 million dollar equalization payment.

Duress, Undue Influence and Unconscionability

Duress occurs when one party to a contract induces the other party to enter into the agreement by way of threat.  If the threat by one party is proved to have coerced the opposing party against his or her will to enter into the agreement, the law of contract states that the coerced party's consent ought to be vitiated.   Undue influence is a milder form of duress in that while threats need not be made, a sense of pressure or influence may be sufficient to create a circumstance in which an agreement between parties is improperly entered into.[16]  Most commonly, the courts use the term ‘unconscionable' when describing situations involving one party who is taken advantage of by the other while in the process of creating and finalizing a domestic contract.  Unconscionability encompasses situations involving one party who, opportunistically, enters into a contract with another and in doing so capitalizes on the other party's weaknesses, ignorance, lack of sophistication, or unequal bargaining power.[17]

Canadian courts often simultaneously address the concepts of duress, undue influence and unconscionability in the realm of prenuptial contracts.  In Freake v. Freake, Justice Cameron of the Newfoundland Court of Appeal summarized the two-part test that is to be applied when determining what constitutes unconscionable conduct as such: "1) there must be an inequality of position of the parties which might arise out of ignorance, distress or incapacity; and 2) the stronger of the two must have obtained a substantial benefit." [18]  Case law from across the country, with differing fact scenarios has confirmed what unconscionable conduct is on the part of one spouse.  The common themes in these cases tend to involve one or more of the following:  1) pressure on one spouse to sign the prenuptial contract,[19] 2) signing the contract without independent legal advice or without knowledge of the law;[20] 3) signing the contract without a true understanding of the nature and consequences of the contract;[21] and 4) signing the contract while experiencing a significant source of stress and while in a vulnerable state.[22]

Conclusion

This paper only begins to address the complexities involved in the creation and finalization of a valid prenuptial contract in Canada.  The very basic requirements of this process, as briefly outlined herein, involve detailed attention to a number of statutes and legal concepts, in addition to thorough consideration of the dynamics of the relationship between the spouses who are subject to the agreement.  Due to the direction recent law has taken and the ever-growing necessity for spouses to obtain independent legal advice, the creation of a legally binding prenuptial agreement ultimately becomes the delicate task of counsel who must not only employ a strong sense of intuition about the personalities involved and know the law as it currently is, but counsel must also attempt to put in place the necessary safeguards to ensure their client's interests are protected as the law and the parties' circumstances evolve over the years to come.

Once the parties have executed the contract, typically the contract is analyzed further only if and when one party to the contract challenges the agreement.  At that juncture, the determination of the validity of the agreement is then left to the court's interpretation of statutes and the application of contract law.  The judiciary undoubtedly exercises a significant degree of discretion when engaged in this process which invariably gives rise to the evolution of the law surrounding prenuptial contracts.   Despite the uncertainty surrounding the future, the safest practice with respect to prenuptial contracts is one that applies as much knowledge of the law to the parties' fact scenario as possible.

[1] Geographically speaking, the Provinces of Canada from west to east include:  British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland.  The territories, also from west to east, include: Yukon Territory, Northwest Territory and Nunavut.  This paper aims to summarize the law pertaining to prenuptial contracts across Canada, with the exception of the Province of Quebec.  The Province of Quebec is excluded from this study due to the fact that Quebec is a common law province and differs from the other Canadian provinces with respect to how its laws are structured.  Further in that regard, it is also our understanding that Mr. Kalman Samuels, Q.C. has undertaken to provide a paper regarding the Province of Quebec.

[2] What is important to note is that each province's legislation regarding property division is only applicable to property within the borders of that province.  Therefore, one province does not have the authority to determine the manner in which property held in another province is to be divided.

[3] The Provinces of British Columbia, Ontario, Newfoundland, New Brunswick, and Prince Edward Island, in addition to Northwest Territories and the territory of Nunavut do not allow spouses to contract with respect to custody or access rights to children of the marriage.

[4] The idea that couples are able to contract out of their rights to significant matrimonial property and that under appropriate circumstances, the courts ought not undo what spouses previously agreed to was strongly supported by a relatively recent decision of the highest court in Canada, the Supreme Court of Canada, in the case of Hartshorne v. Hartshorne (236 D.L.R. (4th) 193).

[5] Manitoba, Ontario and Yukon Territory have enacted legislation that states ant clause in a prenuptial contract that purports to limit a spouse's right to his or her share of the matrimonial home is unenforceable.

[6] As per the Marital Property Act (C.C.S.M. c. M45) of the province of Manitoba, section 1(1) as noted within the definition of "spousal agreement".

[7] Section 64 of the Family Property and Support Act R.S.Y. 2002, c.83.

[8] Namely, Alberta, Ontario, Newfoundland, New Brunswick, and Prince Edward Island.

[9] Reischer v.Reischer [2006] B.C.J. No 1108; Mraovic v. Mraovic [2003] M.J. No. 457; Rogerson v Rogerson [2004] N.S.J. No. 152; LeVan,v. LeVan [2006] O.J. No 3584, Khan v. Khan [2005] O.J. No. 1923 and Dhanna v. Dhanna [2004] O.J. No. 5036.

[10] The Provinces of Ontario, Newfoundland, New Brunswick, Nova Scotia, Prince Edward Island and Northwest Territory and Nunavut do not permit spouses to contract in a manner that fails to consider the best interests of children of the marriage.

[11] Recognized property exemptions in Canada include property brought by one spouse to the marriage, inheritances, gifts from third parties, and insurance proceeds from settlement claims.

[12] The legislation of these provinces do enable compensation to be paid to spouses who have contributed to the other spouse's business in some direct fashion.  It is clear, however, that the courts tend to grant compensation awards that are not as substantial as awards granted on the basis of equitable sharing.

[13] Freake v. Freake [2004] N.J. No. 222; Montreuil v. Montreuil [1999] O.J. No. 4450; Demchuk v. Demchuk (1986), 1 R.F.L. (3d) 176; Dubin v. Dubin 34 R.F.L. (5th) 227 (Ont. SCJ); Pruss v. Pruss (2000) 12 RFL (5th) 188 (Ont SCJ); Murray v. Murray (1994) 10 RFL (4th) 60 (Alta. C.A.); and, in part, Dilly v. Hall-Dilley [2006] B.C.J. No 2021 also supports this premise;

[14] G.H. Treitel, The Law of Contract, 9th ed. (London: Sweet & Maxwell, 1995) [hereinafter referred to as The Law of Contract].

[15] [2006] O.J. No. 3584.

[16] The Law of Contract, Ch 10.

[17] The Law of Contract, Ch 10.

[18] [2004] N.J. No. 222, para 47.

[19] Horvath v. Horvath [2005 B.C.J. No. 1253 and LeVan,v. LeVan [2006] O.J. No 3584.  It is important to note that as per the case of Reischer v. Reischer [2006] B.C.J. No 1108, an ultimatum is not necessarily recognized by the court as undue pressure to sign a prenuptial agreement, especially if all other factors, such as adequate independent legal advice and absence of duress, validate the contract.

[20] Horvath v. Horvath [2005 B.C.J. No. 1253, Khan v. Khan [2005] O.J. No. 1923 and Dhanna v. Dhanna [2004] O.J. No. 5036.

[21] LeVan,v. LeVan [2006] O.J. No 3584, Khan v. Khan [2005] O.J. No. 1923 and Dhanna v. Dhanna [2004] O.J. No. 5036.

[22] Freake v. Freake [2004] N.J. No. 222.

Germany

Prenuptial agreements are valid in Germany. You can find a case HERE involving large amount of money where the prenuptial was considered valid. This case was in England but involving a prenup done in Germany.

Prepared by Auswartiges Amt -- German Federal Foreign Office

(Last updated in November, 2003)

Validity of the marriage

There is no special procedure or authority solely empowered to recognize marriages entered into abroad. The question of whether a marriage is valid is therefore always only a preliminary issue in connection with other administrative acts (e.g. change of name, application to start a family book at a domestic registry, change of entry on one's tax card, etc). This preliminary issue must be determined by the agency responsible at its own discretion.

The basic rule is that a marriage entered into abroad will be regarded as valid in Germany if the legal provisions relating to marriage of that foreign state were abided by. In addition both the bride and groom must meet all legal capacity requirements for marriage under the law of their home states (they must for example be single, over a minimum age and not too closely related to one another).

German nationals are not obliged to apply to start a family book or to change their name upon marriage. It is therefore possible for someone to be validly married without this appearing in German civil status records. A further marriage would however be bigamous and could thus be annulled at any time upon the application of one of the three spouses or the competent administrative authority.

Recognition of foreign marriage certificates

A foreign marriage certificate proves that a marriage has been entered into abroad. In some states (e.g. the US and Canada) the couple is only given a provisional certificate (or a "summary marriage certificate") after the ceremony. The marriage must subsequently be registered with the competent authority in order to obtain a full extract from the register. For further information see the fact sheets produced by the Federal Office of Administration (see "Legal provisions relating to marriage" below).

Foreign marriage certificates are often only recognized by domestic authorities or courts when their authenticity or evidentiary value has been determined in a separate procedure. A range of standard international procedures have been developed, which you can find out more about under the heading "International Recognition/Legalization of documents".

Legal provisions relating to marriage

The German missions abroad regularly report on the law relating to marriage in their host countries. This information is then sent to the Bundesverwaltungsamt (Federal Office of Administration) in Cologne, which produces five brochures on the subject, for the regions Europe, North America, Latin America, Asia/Australia and Africa. These leaflets, entitled "Deutsche heiraten in ..." (Germans marrying in ...) can only be obtained from the advisory units of certain charities for a small fee. A list of such organizations can be obtained free of charge from the Bundesverwaltungsamt, Informationsstelle für Auswanderer und Auslandstätige, 50728 Köln, tel. +49 1888 3580, fax. +49 1888 358 2786 (Federal Office of Administration - Information Agency for Persons Working abroad and Emigrants). This list and further information are also available on the Internet on the homepage of the Federal Office of Administration, under the heading "Auswanderung" (Emigration).

Binding legal advice can however only be given by the official (or competent authority) abroad who will perform the ceremony, and so we strongly recommend that you also make direct contact with this person (or agency) in order to obtain accurate and up-to-date information on the documents required, whether they need to be authenticated or translated, and to agree a date for the wedding.

Marriages by German consular officers

Consular officials now only solemnize marriages in a few German missions, mainly in states which apply Islamic law. They are only able to marry couples if the bride or groom (or both) is resident in the consular district of that mission, at least one of couple is a German citizen and neither of them is a citizen of the country in which the marriage is to take place.

Related legal issues

The place where you marry does not automatically determine which country's laws are applicable to the various other legal issues connected with marriage (e.g. name, property, custody of children). A separate check should be run to establish which legal system will apply, especially if the bride and groom have different nationalities. It is always advisable to consult a lawyer with expertise in this area prior to getting married, who can if requested also help draw up a marriage contract.

Whether a German court or authority will apply German or foreign law depends on the provisions of private international law. The most important provisions of German private international law are to be found in the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch). The text of this Act and other useful information can be found in the brochure "Internationales Privatrecht" (Private international law), published by the Federal Ministry of Justice (Press and Public Relations Division), 10115 , which is available online at www.bmj.bund.de/publik/brosch. A brochure entitled "Das Eherecht" (Matrimonial law) is also available on this site.

You can find useful information on foreign law in the leaflets published by the Federal Office of Administration in Cologne on the matrimonial and family law of various states and in its information sheets entitled "Ehevertragliche Vereinbarungen in den EG-Staaten" (Marriage contracts in EC states) and "Islamische Eheverträge" (Islamic marriage contracts). Extensive specialist literature also exists on private international law and foreign law. One standard work available in many public libraries for consultation by anyone interested is the loose-leaf volume, "Internationales Ehe- und Kindschaftsrecht" (International matrimonial and child law), edited by Bergmann, Ferid and Henrich. Lack of space unfortunately prevents us from listing further sources of information and specialists in foreign law.

Divorce

Not all marriages last "till death do us part". If a marriage that was entered into abroad is to be terminated in Germany, there are often additional issues to be resolved, which will be looked at briefly below. The following information is however no substitute for obtaining proper legal advice.

The place at which the marriage was entered into does not automatically determine which court will have jurisdiction over the case or which law will be applied to the divorce proceedings. Both these issues have to be determined in each individual case.

According to section 606 of the German Code of Civil Procedure, German courts have jurisdiction over matrimonial matters, inter alia, when one spouse is a German national or, if both are foreign nationals, if they are both habitually resident in Germany. This jurisdiction is not exclusive, i.e. it may also be possible to get divorced abroad and, under certain conditions, to have such a divorce recognized in Germany (cf. "Recognition of a foreign divorce" below). Whether it is possible or sensible to get divorced abroad is something to be discussed with a specialist lawyer.

There is an exception to the principle that German nationals may always turn to the German courts: from 1 March 2001, for matrimonial matters in EU states (other than Denmark), it is no longer the nationality of the parties that is relevant but their place of permanent residence. Only if both husband and wife are German nationals may they choose to go to a German court. (Council Regulation (EC) No 1347/2000 of 29 May 2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq.)

The question of which law the German court is to apply in the divorce hearing (German or foreign law) is settled in accordance with the provisions of German private international law (cf. "Related legal issues" above). If the divorce is being obtained abroad, the foreign court will apply its country's private international law in order to determine which law is to be used in the divorce proceedings.

Recognition of foreign divorces

In accordance with the general principles of constitutional and international law, court judgements and similar sovereign acts only have direct legal effect within the territory of the state in which they were passed or performed. Every state is free to determine whether and under which conditions it will recognize foreign sovereign acts, insofar as it is not bound to do so by treaty. The dissolution of a marriage is thus basically only valid in the state in which it was dissolved. In Germany a marriage dissolved abroad continues to be viewed as still in existence. For example, the man and wife continue to be listed as such in German civil status records and registers of residents until the foreign divorce has been recognized (a "limping marriage"). It is thus not possible to enter into a new marriage in Germany before the divorce has been recognized, as it would be bigamous.

Formal recognition is in principle required for the marriage to be effectively dissolved in the eyes of the German law. The following are however exceptions to this rule:

Orders in matrimonial matters which were made in an EU state (other than Denmark) after 1 March 2001 will as a rule be recognized by the registries and authorities of the other member states without any separate preliminary judicial proceedings. The nationality of the parties is not relevant. Recognition will only be denied on the ground of major procedural irregularity or for reasons of public policy.

The European Regulation does not however prevent people from applying to the competent family court for a determination of recognition or non-recognition if they have a legal interest in the matter (Council Regulation (EC) No 1347/2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq., online at www.eu-rat.de).

To enter the divorce in the German civil status records, a certificate from the country where the divorce was obtained is nonetheless required in addition to the divorce decree. This certificate must take a certain form (see Article 33, Annex IV of the Regulation).

Decisions taken by the parties' state of origin: If the divorce was decreed by a court or authority of the state whose sole nationality the parties had at that date, and neither of them was subject to an alternative civil status regime (e.g. as a stateless alien, asylum seeker or foreign refugee), then formal recognition is unnecessary. Insofar as there is a particular legal interest in having a divorce recognized, formal recognition may be applied for. A legal interest is given if for example they need to submit a binding declaration of their civil status for a case arising from the divorce or for registration or taxation purposes.

In all other cases, the formal recognition of the foreign judgement in matrimonial matters must be obtained, pursuant to article 7, section 1 of the Family Law Amendment Act (Familienrechts-Änderungsgesetz). The Land judicial administration authorities are as a rule responsible for the recognition of such foreign judgements. Their duties may also be delegated to the Presidents of the Higher Regional Courts.

The judicial administration authorities of the Land in which one of the spouses has his/her habitual abode have jurisdiction. If neither of the parties is resident in Germany, but a new marriage is to be entered into here, the authorities of the Land where the marriage will take place have jurisdiction. If neither of the parties is resident in Germany and the new marriage is to be entered into abroad, the Senate Department for Justice in Berlin has jurisdiction.

Recognition is only undertaken upon application. In addition to the parties themselves, all persons who can prove a legal interest in the clarification of the status issue may also apply (e.g. fiancé(e)s, subsequent spouses and heirs). An income-tested fee of between EUR 10 and EUR 310 is charged for the decision.

The recognition or non-recognition by the Land judicial administration authority is binding on all courts and administrative authorities in Germany. Upon recognition the divorce is valid under German law with retroactive effect from the date on which the foreign decree entered into force.

For further information on the application procedure contact the registry at your place of residence or at the place of your intended marriage, or the relevant Land judicial administration authority. Applications must be made on an official form, which can be obtained from the registry offices, the Land judicial administration authorities as well as from the German missions abroad. It can also be downloaded from the website of the Senate Department for Justice in Berlin, on which you will also find further useful information.

If a further marriage is entered into abroad before the dissolution of the first marriage has been recognized by the competent Land judicial administration authorities, the second marriage bears the taint of bigamy and is thus voidable. Such a situation could arise if, for example, the second marriage is entered into in a state that does not require foreign nationals to provide certificates of no impediment. Complications can also arise with dual nationals who have German nationality and the nationality of the state in which the marriage was dissolved, even if the second marriage is entered into in good faith. In this case, however, the annulment proceedings will be stayed so that recognition of the foreign divorce decree may be applied for. Recognition has retroactive effect as of the entry into force of the foreign order, and so once it is recognized that the first marriage has been dissolved, the second initially bigamous marriage is remedied.

The process of recognition of foreign decisions in matrimonial matters is important as it establishes certainty as regards the existence or non-existence of a marriage, and a large number of legal consequences hinge upon this question. A marriage has far-reaching implications in terms of taxation law, aliens law, social law and civil law – for example the statutory rules of inheritance. There are thus many reasons for having a specialized agency to deal with the recognition of foreign divorces with final and binding effect for all German authorities and courts.

The recognition by the Land judicial administration authorities is however restricted to the dissolution of the bonds of marriage. Any other arrangements included in the foreign judgement regarding related issues (maintenance claims, pension arrangements, property issues) are not affected by the decision of the Land judicial administration authorities. If any of these matters is in dispute or in need of further action in Germany, you must go to the German civil courts.

Procuring divorce decrees, marriage certificates and other documents from abroad

In order to prove that a marriage has been dissolved abroad, the marriage certificate, divorce decree and, if necessary, other documents must be submitted to the German authorities or courts. Should any difficulties, linguistic or otherwise, arise in procuring these documents which make direct contact with the issuing agency in the foreign country impossible, the German mission responsible for that district may be able to help. German missions are however permitted to procure documents for German nationals only. The applicant must moreover prove that he/she has a legitimate interest in obtaining the relevant document and must be able to provide detailed information (the full names of those involved, place, date, and if possible the registry number of the civil status records or the court file number).

Experience however shows that long waiting times are not uncommon. The German missions have no power to accelerate the time taken by the host country's authorities to process the application.

A fee is payable for procuring certificates and other documents. The fee (currently EUR 15 to EUR 100) and any costs incurred (e.g. fees charged by local authorities) are to be paid by the applicant.

If normal postal channels do not appear reliable enough for communicating with the German mission abroad, a private international courier service should be used instead. The diplomatic bag between the Foreign Office and its missions abroad is solely for the purpose of transporting official correspondence pursuant to the Vienna Conventions on Diplomatic and Consular Relations, and therefore cannot be used by private individuals. Click here for the addresses of the German missions abroad and details of their consular districts.

Recognition abroad of German divorces

In some circumstances (e.g. to ascertain the requirements for a bi-national marriage or to enforce property rights) it is necessary for a German divorce to be recognized abroad and, where applicable, to be entered into the local civil status records. In accordance with the general principles of constitutional and international law, court judgements and similar sovereign acts only have direct legal effect within the territory of the state in which they were passed or performed. Every state is free to determine whether and under which conditions it will recognize foreign sovereign acts, insofar as it is not bound to do so by treaty. The dissolution of a marriage is thus basically only valid in the state in which it was dissolved (see above, recognition of foreign divorces), and so separate proceedings are usually required for its recognition elsewhere.

One exception to this rule is German divorces granted in proceedings after 1 March 2001 which are to be used in other EU member states (other than Denmark). The divorce decrees will as a rule be recognized without any additional preliminary judicial proceedings (Council Regulation (EC) No 1347/2000 on the jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses, Official Journal of the European Communities 2000 No L 160, p. 19 et seq., online at www.eu-rat.de). As proof of divorce, the EU member states (excluding Denmark) require you to submit the divorce decree and a certificate from the court which must take a certain form (see Article 33, Annex IV of the Regulation).

All other states, however, usually require a decision by a court or authority of their own before they will recognize German divorces. Bilateral or multilateral agreements are in force with some states which facilitate the mutual recognition of divorce decrees. In some states foreign divorces are not recognized as a matter of principle and must, where necessary, be repeated there.

For further advice on these matters please consult a specialist lawyer.

To obtain an overview, you could consult some of the legal literature on the subject, e.g. commentaries on section 328 of the Code of Civil Procedure, "Internationales Ehe- und Kindschaftsrecht" (International matrimonial and child law) by Bergmann, Ferid and Henrich and "Internationaler Rechtsverkehr in Zivil- und Handelssachen" by Bülow, Böckstiegel, Geimer and Schütze. Lack of space unfortunately prevents us from listing further sources of information and specialists in foreign law.