Recognition of Brazilian Divorces in Germany
A divorce granted in Brazil is not automatically recognized by German authorities. Rather, a recognition proceeding under § 107 FamFG is required.
This article explains the key requirements of the recognition process and outlines when recognition is required and how the process works.
Here, we discuss the issue of the recognition of German divorces in Brazil.
When must a Brazilian divorce be recognized?
As a general rule, foreign judgments regarding the validity of a marriage must be recognized by the German state judicial administration (Section 107 FamFG).
Only once this recognition has been granted is it legally established that the marriage is considered dissolved under German law as well. Without a recognition decision, German authorities may continue to assume that the marriage is still in effect.
This is particularly significant in practice when
if the intention is to remarry in Germany,
marital status must be verified at a German civil registry office,
a succession has occurred, or
the divorce is to be taken into account in court or administrative proceedings
What is being tested?
The recognizing authority does not examine in detail whether the divorce was properly finalized. Rather, it verifies that the divorce meets minimum requirements, in particular:
whether the Brazilian agency had international jurisdiction,
whether both spouses were given the right to be heard,
whether the divorce is legally binding or final,
whether there is any conflicting German decision and
whether the recognition would violate fundamental principles of the German legal system (ordre public).
If these requirements are met, recognition is generally granted.
Are there any exceptions?
Yes. Recognition is granted without a detailed review by the state judicial administration if the divorce was granted by an authority or court of a country to which both spouses belonged at the time of the decision (not: at the time of the marriage). The legislature assumes that the parties are familiar with the law of their shared country and therefore do not require further “protection” from a German authority.
Example: A (a Brazilian woman) and B (a German man) get married in Germany. Later, they move to Brazil, where B successfully applies for Brazilian citizenship after some time. They get divorced in Brazil. Since B wants to remarry, he must have the divorce recognized in Germany, a process that is significantly faster thanks to the exception.
What documents are required?
The documents that must be submitted in each individual case depend on the type of divorce. The following are typically required:
the Brazilian divorce decree or divorce certificate,
proof that they are legally binding or final,
an apostille,
a translation by a translator certified in Germany, as well as
if applicable, the marriage certificate and other civil status documents.
Special Feature: Notarial Divorce (divórcio extrajudicial)
Under Brazilian law, spouses may, under certain conditions, obtain a divorce by mutual consent directly at a cartório (notary’s office). In such cases, there is no court decree of divorce; instead, a notarial deed is issued.
In principle, such a divorce can also be recognized in Germany. The recognition procedure is also governed by § 107 FamFG. However, the documents that must be submitted vary depending on the individual case.
How long does the recognition process take?
It is not possible to predict the duration in general terms. It depends, in particular, on the relevant state judicial administration and the completeness of the submitted documents.
If documents are missing or translations are incomplete, the process may be significantly delayed.
