More and more marriages today have an international dimension—whether because the partners were married abroad, hold different nationalities, or live in different countries. If such a marriage breaks down, the question quickly arises: Which court has jurisdiction—and which law applies?
The answers can have far-reaching consequences, specifically regarding spousal support, the division of assets, and the duration of the proceedings.
Which law applies in the event of a divorce?
Within the EU, the Rome III Regulation (EU No. 1259/2010) governs which law applies to the divorce of spouses. The basic rule is as follows: If the spouses share a common habitual residence, the law of that country applies. If, however, they do not share a common habitual residence, the law of the country of which both are nationals applies. Furthermore, if the spouses do not share a common nationality, the court hearing the case applies its own national law.
In certain circumstances, spouses may also choose the applicable law themselves—a decision that can have significant implications for spousal support, the division of assets, and the duration of the proceedings.
Which court has jurisdiction?
Within the EU, the Brussels IIa Regulation determines which court has jurisdiction over an international divorce. Austrian courts generally have jurisdiction if both spouses have their habitual residence in Austria or last had it there and one of them still lives there; if the spouses jointly file for divorce and one of them lives in Austria; or if the spouse filing the petition has lived in Austria for at least six months (Austrian citizenship) or one year (foreign citizenship).
Important: Since multiple courts may have jurisdiction at the same time, a veritable “race to court” sometimes ensues—because whoever files the lawsuit first determines the venue.
Children, Child Support, and Assets
In addition to the divorce itself, the parties involved often have to resolve other issues.
In matters of custody and the child’s residence, the court generally applies the law of the country in which the child lives. International conventions such as the Hague Convention on the Protection of Children may also apply in such cases.
Maintenance claims—for both children and spouses—may be governed by different legal systems depending on the connecting factor. This has a direct impact on the amount, duration, and enforceability of such claims.
When dividing assets, courts within the EU often rely on the EU Matrimonial Property Regime Regulation (EU No. 2016/1103)—provided the spouses have not entered into their own matrimonial property agreement. This applies, for example, to real estate in Germany and abroad, savings, and business interests.
A prenuptial agreement as a precaution
Those who wish to protect themselves early on can use a prenuptial agreement to establish clear provisions for a potential international divorce—such as the choice of law, property agreements, or provisions regarding spousal support.
This is particularly recommended for couples of different nationalities, those with assets in multiple countries, or those who frequently change their place of residence. A well-drafted prenuptial agreement can significantly reduce future disputes and costly cross-border legal proceedings.
Conclusion: Seek advice early on
An international divorce presents complex legal challenges. The choice of the appropriate court and the applicable law determines how quickly the proceedings will proceed and what outcomes the parties will achieve regarding spousal support, child custody, and property division.
Therefore, those who seek legal advice early on can set the strategic course in a timely manner and avoid many complications in the process.
