Subsequent Pension Equalization after Foreign Divorce: Expanded Consideration of the Legal Situation
With the decision of the Saarland Higher Regional Court dated January 30, 2019 (Ref.: 6 UF 11/18), it has once again become clear that a subsequent pension equalization is possible even after a divorce carried out abroad and recognized in Germany. The relevant legal and practical aspects of this situation are comprehensively presented below.
Legal Basis and Significance of Pension Equalization
The pension equalization is a specific institution of German family law that aims to fairly distribute the entitlements to old-age and disability pensions acquired during the marriage in the event of a divorce. The core regulations for this are found in the Pension Equalization Act (VersAusglG), which in particular aims at the equal participation of both spouses in the pension entitlements acquired during the marriage.
If a divorce takes place before a foreign court, pension equalization is very often omitted since comparable regulations are usually not provided for in foreign law. If the foreign divorce is recognized in Germany, the question arises as to subsequent claims for the implementation of pension equalization.
The Case before the Saarland Higher Regional Court
The Saarland Higher Regional Court dealt with a case in which the spouses were initially divorced abroad, but the divorce was later recognized in Germany. The type of pension equalization typical in German law had not been carried out in the foreign proceedings. The affected wife subsequently applied for the subsequent implementation of this equalization. The court made it clear that the divorce carried out abroad in principle does not preclude the subsequent assertion of pension equalization rights, provided the requirements under § 6 VersAusglG are met.
According to the court, it should be particularly noted that the exclusion of pension equalization only applies if both parties have waived its implementation or there are reasons of legal certainty to the contrary. If these conditions are not met, the spouse entitled to equalization has the option to request the implementation of pension equalization under German law even after a foreign divorce has become final.
Requirements for Subsequent Pension Equalization
Recognition of the Foreign Divorce
A fundamental prerequisite for asserting pension equalization is that the foreign divorce has been recognized in Germany pursuant to § 107 FamFG. Without such recognition, the divorce decree does not have legal effect in Germany, in particular not with regard to any subsequent matters such as pension equalization.
No Regulation in the Foreign Judgment
Pension equalization must not have been dealt with in the foreign judicial proceedings. This is usually the case since many foreign legal systems do not provide for a corresponding procedure.
No Opposing Reasons
The implementation of pension equalization must not be precluded by overriding reasons of legal certainty or protection of legitimate expectations. The Saarland Higher Regional Court emphasized that pension equalization can be claimed subsequently, provided that no alternative arrangement has been made between the parties or the claim has not been expressly waived.
Practical Consequences for the Parties Involved
The decision allows divorced spouses whose marriage was dissolved abroad and whose divorce was recognized in Germany to achieve, subsequently, a fair equalization of pension entitlements acquired during the marriage. This can have significant effects, in particular on retirement benefits and financial security in old age.
Furthermore, the court limited the possibility of invoking the protection of legitimate expectations or the lapse of time. Pension equalization is therefore generally not excluded as long as the statutory requirements are met and no subsequent agreement to exclude it exists between the parties.
International Perspective and EU Legal Framework
With increasing international mobility and marriages between nationals of different countries, the question of cross-border pension equalization claims is becoming ever more important. The case before the Saarland Higher Regional Court demonstrates that German law, especially in the field of pension equalization, claims independent applicability as long as the divorce is recognized in Germany. EU regulations, such as the Rome III Regulation, generally affect the requirements for divorce itself, but not necessarily the financial consequences.
It should also be noted that, prior to cross-border divorces, a detailed examination of the respective national laws and careful, forward-looking arrangements may be appropriate in individual cases.
Conclusion
With its decision, the Saarland Higher Regional Court has provided significant clarity that a spouse can, in principle, demand the subsequent implementation of pension equalization after a divorce already carried out abroad and recognized in Germany, provided no barriers exist in accordance with statutory provisions.
Anyone facing questions regarding the recognition of foreign judgments or pension equalization claims after foreign divorces will benefit from an expert analysis of the relevant legal situation in each individual case. The Rechtsanwälte of MTR Legal support clients in international family law to develop practical solutions in line with current court decisions and the needs of the clients.
