If marriages with an international dimension fail (e.g. several places of residence, different nationalities of the spouses), in many cases the courts of several states are available for divorce proceedings. Economically, it can make a huge difference in which country the divorce proceedings take place. The principle has been the same up to now: the country in which the divorce application is first filed is responsible. This legal situation could soon be in a state of flux.
As a rule, the courts apply their own national family law. There may be major differences between their law and the law of the other countries in question. This applies in particular to the financial consequences of divorce. For example, the Central Family Court in London ruled in one case in March 2016 that the wife should receive 90 per cent of the husband’s total assets (Jane Morris vs. Peter Morris). This legal consequence would be completely unthinkable in a comparable case in Germany. The compensation for gain to be carried out here is merely intended to distribute half of the additional assets acquired during the marriage. The case makes it particularly clear how advantageous or disadvantageous it can be for a spouse to be divorced in a certain country.
This also applies to marriage contracts concluded in Germany. They are often not recognised as binding abroad. Anyone who has contractually agreed on a separation of property in order to protect his or her assets may lose this protection if the divorce proceedings do not take place in Germany.
The large financial differences between the different national legal systems often result in the spouses competing for jurisdiction. This is because the first person to file for divorce – if he or she does everything correctly when filing the application – can ensure that the divorce proceedings take place in the country of his or her choice. If a lot of money is at stake, it is worth winning the race.
There could be some movement in this legal situation in the near future. Some EU states plan to jointly adopt a regulation that will regulate exactly which country is to pronounce divorce in the event of a cross-border marriage. Only its courts can then be entrusted with divorce. There would no longer be a race. On 23 June 2016, the EU Parliament approved the corresponding draft regulation (procedure 2011/0059/CNS). This means that now there is a good chance that the regulation will actually enter into force at some point. However, it would only be binding in those countries that have participated in it. This would not include a number of EU countries, such as Hungary, Poland, Denmark, and – important in practice – Great Britain. The regulation would not apply to countries outside the EU (including Switzerland, for example) anyway. For these countries, it will therefore still be decisive in the future which spouse in which country will be the first to file for divorce.
It is not yet possible to predict when the planned regulation will become applicable law. It is therefore still urgently advisable, in cases where the marriage has an international component and where a lot of assets are involved, to check as early as possible when and where the divorce application could be filed.
(7 September 2016)