German Law/Divorce from German citizen
I have been married to a German citizen for 16 yrs now and we have a 14 yr old son with dual citizenship. We never lived in Germany. I am Turkish. We live in Malaysia. My husband left us 10 months ago he is still in Malaysia. I want to file for divorce in Germany, as our marriage is approved by the German state as well. I have been told that since i do not have residency in Germany I cannot apply for divorce there. My son and I will move back to Turkey soon. I really want to file for divorce in Germany because the law there will protect me and my son better. Once the divorce is settled there all I have to do is to have it approved by the Turkish courts. My husband is employed by a German company and most of his salary is paid in Germany to a German bank account, not here. Is it possible by any chance for me to file for divorce from my husband in Germany, even if I do not have residence there?
Thank you so much and looking forward to your answer
ANSWER: Yes, you can use the German courts because your husband is a German citizen (§ 98 I no. 1 FamFG) and because none of you live in any EU member state that would otherwise have jurisdiction (Art. 7 I EC regulation 2201/03).
- the German court won't have any jurisdiction regarding child custody. If you will move to Turkey, that jurisdiction will lie with Turkey (and/or with Malaysia if Malaysia will retain jurisdiction);
- the German court might apply Malaysian law unless both of you agree on the application of German law;
- you will have to have your husband served in Malaysia which will make matters more complicated.
For more on divorce law in Germany: http://andreasmoser.wordpress.com/2009/08/07/10-faq-on-divorce-in-germany/
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QUESTION: Thank you Mr. Moser, you are very kind to answer me back so fast. My husband is trying to get away from the German divorce law as he knows he will have to do more maintenance compared to Turkish or Malaysian law. How can German courts apply Malaysia divorce law when they have two types of divorce courts in Malaysia? One for Muslims, one for non. Muslims. I am muslim and my husband is Christian. The sheria (muslim divorce) divorce law is literally against women's rights, and the Christian courts is not so different about protecting me or my child. Our marriage in this country would be questionable as we have different religions. And I will not be living in Malaysia anymore with my son. Due to the situation's complexity, would the German courts then be pushed to do the divorce with German law?
Thank you so much again
The German court would first try to apply the Malaysian law which would need to be applied if you were to file for divorce in Malaysia. It would try to sort out this conflict between the two different legal regimes according to Malaysian law of conflict (if there is one).
If the applicable law would lead to a disadvantage of one spouse because of her sex, then the German court would declare such a law as not in compliance with the "ordre public" and would then not apply it. It will then apply German law instead.
Because you have mentioned maintenance, I would like to point out that we have only spoken about divorce so far. The applicable law for maintenance could be a completely different one. These cases are separate and different and different rules apply.