Germany: Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction[1]
Part 9
Proceedings with Transnational Elements
Chapter 1
Relationship to International Law Agreements and Legal Acts of the European Union
Section 97
Priority and Integrity
(1) Provisions in international law agreements shall have priority over the provisions in this statute insofar as they have become directly applicable national law. Provisions in legal acts of the European Union shall remain unaffected.
(2) Provisions enacted for the implementation and execution of agreements and legal acts within the meaning of subsection (1) shall remain unaffected.
Chapter 2
International Jurisdiction
Section 98
Marital Matters; Interconnection of Divorce and Ancillary Proceedings
(1) German courts shall have jurisdiction over marital matters when:
- a spouse is or was German at the time of entering into the marriage;
- both spouses have their place of usual residence in Germany;
- one spouse is a stateless person with place of usual residence in Germany;
- one spouse has his place of usual residence in Germany, with the proviso that the decision to be made obviously would not be recognized under the law of any state of which one of the spouses is a national.
(2) In proceedings for the annulment of the marriage pursuant to article 13 (3) no. 2 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch; EGBGB), German courts shall also have jurisdiction if the spouse, who at the time of the marriage had reached the age of 16 but not 18, has his place of residence in Germany.
(3) In cases of the interconnection of divorce and ancillary proceedings, the jurisdiction of German courts pursuant to subsection (1) shall extend to such ancillary proceedings.
Section 99
Parent and Child Matters
(1) Except for proceedings pursuant to section 151 no. 7, German courts shall have jurisdiction when the child:
- is German or
- his place of usual residence is in Germany.
In addition, German courts shall have jurisdiction to the extent the child requires the care of a German court.
(2) If both German courts and the courts of a foreign country have jurisdiction with respect to the order of guardianship and if guardianship is pending in the other country, the German court may refrain from issuing a guardianship order when this is in the interests of the ward.
(3) If both German courts and the courts of a foreign country have jurisdiction with respect to the order of guardianship and if a guardianship exists within Germany, the court before which the guardianship proceeding is pending may relinquish the matter to the country whose courts would have jurisdiction over a guardianship order when this is in the interests of the ward, the guardian states agreement therewith, and the other country states its willingness to assume the guardianship. If the guardian, or, in cases where two or more persons have joint guardianship, one of the guardians, agrees, then instead of the court where the guardianship is pending, a decision shall be made by the court of a higher instance in the proceedings. The order shall not be appealable.
(4) Subsections (2) and (3) shall apply mutatis mutandis to proceedings pursuant to section 151 nos. 5 and 6.
Section 100
Matters Relating to Parentage
German courts shall have jurisdiction when the child, the mother, the father, or the man who has made a declaration in lieu of an oath that he and the mother had sexual relations during the time of conception:
- is German or
- has his place of usual residence in Germany.
Section 101
Matters Relating to Adoption
German courts shall have jurisdiction when the person seeking to adopt, one of the spouses seeking to adopt, or the child:
- is German or
- has his place of usual residence in Germany.
Section 102
Matters Relating to the Equalisation of Pension Rights
German courts shall have jurisdiction when:
- the applicant or the respondent has his place of usual residence in Germany;
- a decision is to be made concerning claims within Germany, or
- a German court dissolved the marriage between the applicant and respondent.
Section 103
Matters Concerning Life Partnerships
(1) German courts shall have jurisdiction over matters concerning life partnerships relating to the dissolution of the life partnership based upon the Act on Registered Life Partnerships or the establishment of the existence or non-existence of a life partnership when:
- a life partner is or was German at the time of the establishment of the life partnership,
- the place of usual residence of one of the life partners is in Germany, or
- the life partnership was established before a competent German public body.
(2) In cases of the interconnection of the dissolution of life partnerships and ancillary proceedings, the jurisdiction of German courts pursuant to subsection (1) shall extend to such proceedings.
(3) Sections 99, 101, 102, and 105 shall apply mutatis mutandis.
Section 104
Matters Concerning Custodianship and Placement; Curatorship for Adults
(1) German courts shall have jurisdiction when the person concerned or the adult ward;
- is German or
- his place of usual residence is in Germany.
In addition, German courts shall have jurisdiction to the extent the person concerned or the adult ward requires the care of a German court.
(2) Section 99 (2) and (3) shall apply mutatis mutandis.
(3) In cases of proceedings pursuant to section 312 no. 4, subsections (1) and (2) shall not be applicable.
Section 105
Other Proceedings
In other proceedings pursuant to this statute, German courts shall have jurisdiction when local jurisdiction lies with a German court.
Section 106
Non-exclusionary Effect of Jurisdiction
Jurisdiction as set forth in this Chapter shall not be exclusive.
Chapter 3
Recognition and Enforceability of Foreign Judgments in Marital Matters
Section 107
Recognition of Foreign Judgments in Marital Matters
(1) Judgments annulling, terminating, or dissolving a marriage, or declaring a legal separation, or establishing the existence or non-existence of a marriage between the participants in a foreign country shall only be recognized when the Land department of justice has established that the prerequisites for recognition are fulfilled. If a court or a public authority of such state reached a judgment after hearing both spouses, recognition shall not be dependent upon such an establishment by the Land department of justice.
(2) The Land department of justice in which one spouse has his place of usual residence shall have jurisdiction. If neither spouse has a place of usual residence in Germany, the Land department of justice shall have jurisdiction in which a new marriage or life partnership is to be entered into; the Land department of justice may request proof that the marriage or life partnership entered into has been registered. When no other basis for jurisdiction exists the Berlin Land department of justice shall have jurisdiction.
(3) The Land governments may transfer the authority of the Land department of justice in accordance with these provisions to one or more of the presidents of the Higher Regional Courts by way of statutory instrument. The Land governments may transfer the power in the first sentence by way of statutory instrument to the Land department of justice.
(4) A decision shall be made upon application therefor. The application can only be filed by a person who credibly demonstrates a legal interest in the recognition.
(5) If the Land department of justice rejects the application, the applicant may apply for a decision from the Higher Regional Court.
(6) If the Land department of justice establishes that the prerequisites for recognition are fulfilled, a spouse who had not submitted the application may apply for a decision from the Higher Regional Court. The decision of the Land department of justice shall become effective upon notification to the applicant. However, the Land department of justice may determine in its decision that such decision shall first become effective after a certain period of time has passed.
(7) Jurisdiction shall lie with a civil panel of the Higher Regional Court in the district of which the Land department of justice has its seat. An application for a judicial decision shall not have suspensive effect. Parts 4 and 5 and sections 14 (1) and (2) and 48 (2) shall apply mutatis mutandis.
(8) The above provisions shall be applicable mutatis mutandis to an application that seeks to establish that the prerequisites for recognition are not fulfilled.
(9) The establishment that the prerequisites are or are not fulfilled shall be binding upon courts and administrative authorities.
(10) If on 1 November 1941 a German family register (marriage register) contained a notation based upon a foreign decision concerning an annulment, termination, dissolution, separation, or the existence or non-existence of a marriage, the notation shall be equivalent to recognition pursuant to these provisions.
Section 108
Recognition of Other Foreign Judgments
(1) With the exclusion of judgments in marital matters and judgments under section 1 (2) of the Act on the Effect of Adoptions According to Foreign Law (Adoptionswirkungsgesetz; AdWirkG), foreign judgments shall be recognized without the requirement of a particular proceeding.
(2) Participants who have a legal interest therein may apply for a decision on the recognition or non-recognition of a foreign judgment that does not involve property law. Section 107 (9) shall apply mutatis mutandis. As to the recognition or non-recognition of the adoption of a child, however, the provisions of the Act on the Effect of Adoptions according to Foreign Law shall be applicable when the adopted person at the time of the adoption had not yet reached the age of 18.
(3) Local jurisdiction for a decision on an application in accordance with subsection (2) sentence 1 shall lie with the court in the district of which at the time of the filing of the application:
- the person opposing the application or the person that the decision on the application relates to has his usual place of abode or
- if there is no local jurisdiction pursuant to no. 1, interest in the establishment became known or the need for care arose.
This jurisdiction shall be exclusive.
Section 109
Impediments to Recognition
(1) Recognition of a foreign judgment shall be excluded:
- when the courts of the other state do not have jurisdiction under German law;
- when a participant, who did not comment on the main action and claims that the document initiating the proceeding was improper or that notification was untimely so that he could not properly exercise his rights;
- when the judgment is incompatible with a judgment issued or recognized earlier in Germany, or when the proceedings at the basis of such judgment are incompatible with proceedings that were previously pending here;
- when recognition of the judgment would lead to a result that is obviously incompatible with significant principles of German law, in particular when recognition is incompatible with fundamental rights.
(2) Section 98 (1) no. 4 shall not proscribe recognition of a foreign judgment in a marital matter when a spouse has his place of usual residence in the state in which its courts decided. If a foreign judgment in a marital matter is recognized by the states of which the spouses are nationals, section 98 shall proscribe recognition of the judgment.
(3) Section 103 shall not proscribe recognition of a foreign decision in a life partnership matter when the country that maintains the register recognizes the judgment.
(4) Recognition of a foreign judgment relating to:
- matters concerning family disputes;
- an obligation of care and support in the community of the life partners;
- governance of the legal relationship as to the joint residence and household objects of the life partners,
- decisions pursuant to section 6 sentence 2 of the Act on Registered Life Partnerships in conjunction with sections 1382 and 1383 of the Civil Code, or
- decisions pursuant to section 7 sentence 2 of the Act on Registered Life Partnerships in conjunction with sections 1426, 1430, and 1452 of the Civil Code
shall also be excluded when reciprocity is not guaranteed.
(5) An examination of the legitimacy of the foreign judgment shall not take place.
Section 110
Enforceability of Foreign Judgments
(1) A foreign judgment shall not be enforceable when it cannot be recognized.
(2) Insofar as the substance of a foreign judgment relates to a duty in section 95 (1), enforceability shall be ruled upon in an order. The order shall contain the grounds therefor.
(3) The Local Court in the district that would have general local jurisdiction over the obligor shall have jurisdiction for the order, otherwise the Local Court in which a lawsuit could be filed against the obligor pursuant to section 23 of the Code of Civil Procedure shall have jurisdiction. The order shall first be issued only after the judgment of the foreign court becomes final and binding under the laws applicable to that court.
[1] Translation provided by Karen Guida.