Introduction to International Marriage Law
International marriage law regulates which rules and laws apply to marriages and divorces with a foreign element. As soon as one partner has a different nationality, their usual residence is in different countries, or the marriage was concluded abroad, special rules of private international law apply. These provisions determine which law is decisive for the legal relationships of the spouses and how the marriage is recognized in Germany or other states.
A central element is the EU Regulation “Rome III”, which uniformly regulates for all member states of the European Union – and thus also for Germany – which law applies to divorces with a foreign connection. It is often decisive in which state the marriage was concluded or where the spouses have their habitual residence. Thus, it may happen that the law of another country is applicable, even if the partners live in Germany. The regulation ensures greater legal certainty and clarity in international marriages and divorces by coordinating the application of the respective national provisions. Anyone wanting to enter into or dissolve a marriage with a foreign element should therefore inform themselves early about the applicable rules and the impact on their own rights and obligations.
Online marriage concluded in the USA invalid – Decision of the Federal Court of Justice (BGH), Ref. XII ZB 244/22
International marriages are no longer an exception. This also creates requirements for family law. If the spouses have different nationalities, the question arises which legal system applies. The recognition of the marriage is usually decided by a court. In the USA, courts of the individual federal states are responsible for marriages and their recognition, whereby each federal state has its own regulations. If the marriage vow is given in Germany, German law must also be applied. This also has an impact on marriages concluded via video telephony. This is shown by a decision of the Federal Court of Justice (BGH) of September 25, 2024 (Ref. XII ZB 244/22).
If a marriage is concluded in Germany, the formal requirements applicable in Germany must be observed. This means that both partners must personally and simultaneously appear before the registrar so that the registrar can duly conduct the marriage, according to the commercial law firm MTR Legal Rechtsanwalt, which also advises on family law – in contrast to the USA, where family law is predominantly regulated at the state level and there are no uniform federal regulations.
Marriage not recognized in Germany
The BGH now had to decide on the validity of a so-called online marriage that was concluded in the USA. Specifically, two Nigerians living in Germany married via videoconference with an American authority in Utah. Both were in Germany at the time of the marriage and gave their vows via audio and video transmission simultaneously, receiving a marriage certificate from the USA including an apostille. This case is a good example of the problem of online marriages with a foreign element.
When the German registration authority did not recognize the marriage, the couple wanted to marry again in Germany. However, the registry office doubted whether a new wedding was possible or whether the marriage in Utah stood in the way – a legal pitfall can quickly arise here if the recognition of such marriages is unclear. The competent local court and the Higher Regional Court of Cologne saw the online marriage as no obstacle to a subsequent marriage in Germany, as the marriage was invalid. However, the supervisory authority for registry offices filed a legal complaint with the BGH.
Place of Declaration of Intent Is Decisive
The BGH confirmed the view of the lower courts and declared that the marriage concluded in the USA is invalid under German law. For the question of whether a marriage was concluded domestically or abroad, the decisive factor is where the declarations of intent are made, the judges in Karlsruhe stated. The competent court must also determine which national law and which legal framework conditions are applicable. Since both partners were in Germany during the online ceremony, it is considered a marriage concluded domestically. Therefore, German formal requirements must be strictly applied, according to the BGH.
Personal and Simultaneous Attendance Before the Registrar
Under German law, for a marriage to be valid, both partners must be personally and simultaneously present before a German registrar. Before a wedding in Germany, certain formalities must be fulfilled, such as presenting certificates and registering with the registry office. A marriage is only valid if both partners personally and simultaneously declare, in a single act, their intention to marry. These form requirements are mandatory under German law. The BGH further stated that according to Art. 13(4) of the Introductory Act to the German Civil Code (EGBGB), a marriage can only be concluded domestically in the prescribed form. A deviating form, even if customary or valid abroad, is not sufficient.
This is intended, among other things, to create legal certainty and prevent circumvention, the BGH continued. The possibility of concluding a marriage abroad using online services while both partners are actually in Germany could otherwise undermine key protective provisions of German marriage law, as compliance with the formalities is crucial for the validity of the marriage.
Marriage in Germany
For a marriage to be validly concluded in Germany, certain requirements must be met: Both partners must be of legal age and not already married or in a civil partnership. In addition, no marriage prohibition may exist, e.g., due to a close family relationship.
The marriage ceremony then takes place in the presence of a registrar. Representation or digital alternatives – such as video transmission – are not permitted. Neither a registry office marriage vow made through a third party nor a written declaration is sufficient. Both partners must be present at the same time, in the same place, and personally declare their intention to marry each other, thus granting the couple legally recognized rights and obligations that apply to both spouses.
Compliance with Formal Requirements
In its decision of September 25, 2024, the BGH made it unequivocally clear that a marriage concluded via an online ceremony, where both partners were in Germany, is invalid under German law since the legally prescribed form was not complied with. There is an obligation to observe the German formal requirements at the time of marriage, even though, in principle, there is no legal obligation to subsequently register a marriage concluded abroad in the German marriage register. A later marriage before a German registrar is therefore legally permissible. The decision emphasizes that compliance with German formal requirements not only serves formal purposes, but also provides substantive protection functions, e.g., to prevent forced marriages or identity fraud. For couples in Germany, the traditional route to marriage before the registry office remains the only legally secure option.
MTR Legal Rechtsanwalt advises on marriage, marriage contracts, divorce, and other aspects of international family law.
If you have questions about international marriages, individual preferences regarding applicable law, or if you need further information about a particular process, you are welcome to contact us and schedule a consultation!
Subsequent Certification of a Marriage Concluded Abroad
If a marriage was concluded abroad, German nationals have the possibility to have this marriage subsequently certified in Germany. The subsequent certification is carried out at the registry office at the current or last German residence. The prerequisite is that at least one of the spouses has German citizenship and a domestic residence exists or existed.
For the application for subsequent certification, various documents must be submitted in the original or as certified copies, including the foreign marriage certificate, birth certificates, and proof of German citizenship. If the certificates are in a foreign language, a certified German translation is required. In many cases, an additional certification such as an apostille or legalization is also required to confirm the authenticity of the documents.
Although subsequent certification of a marriage concluded abroad is not mandatory, it offers practical advantages: After successful certification, the German registry office issues a German marriage certificate. This often eliminates the need to repeatedly have foreign certificates translated and certified – for example, in dealings with authorities or applications in Germany. Therefore, anyone who lives permanently in Germany or wants to assert rights from the marriage in Germany benefits from subsequent certification and the associated facilitation when dealing with German authorities.
