Should I marry a Nigerian
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The requirements for the recognition of foreign judgments are regulated in Section 328 of the Code of Civil Procedure (ZPO). A judgment within the meaning of this provision is understood to mean any judicial decision that has finally concluded a legal dispute between the parties following a procedure that gave both parties a hearing. The decision must come from a body endowed with state authority, which is called upon to resolve private law disputes on the basis of a procedural procedure under the relevant foreign laws.
Decisions in matrimonial matters made in one of the EU member states (except Denmark) are regularly recognized in the other member states without the need for special judicial proceedings. The nationality of those involved is irrelevant. Also, the entry in the civil status registers no longer requires any special procedure if no further legal remedies can be lodged against the decision in a member state. A recognition procedure is therefore not required in the EU member states (except Denmark). Recognition will only be refused in the event of serious procedural errors or if they are incompatible with German public policy.
To recognize a divorce, the divorce decree and a certificate issued by the court or authority of the Member State of origin based on a specific model must be presented.
Home state decisions are an exception. If the divorce was pronounced by a court or an authority of the state to which both spouses belonged exclusively at the time of the decision, and neither of the spouses was subject to any other personal status at the time of the divorce (e.g. as a homeless foreigner, person entitled to asylum or foreign refugee) a formal recognition procedure is unnecessary.
In other cases, e.g. when a Nigerian divorce decree is presented, formal recognition of the foreign decision in matrimonial matters is required. The legal basis for this is Section 107 (1) of the Act on the Procedure in Family Matters and in Matters of Non-Legal Jurisdiction (FamFG). In principle, the state justice administrations are responsible for the recognition decision. Their tasks can also be delegated to the presidents of the higher regional courts.
The jurisdiction is the judicial administration of the federal state in which a spouse has their habitual residence or - if neither of the spouses is in Germany - of the federal state in which a new marriage is to be concluded. If neither of the spouses is resident in Germany and a new marriage is to be concluded abroad, the Senate Department for Justice in Berlin is responsible.
The decision in such a recognition procedure is only made on Request. In addition to the spouse concerned, any person who can plausibly demonstrate a legal interest in clarifying the status issue (e.g. fiancé, future spouse or heir) is entitled to apply. For the decision on the application - depending on the applicant's income - a fee of between EUR 10 and EUR 310 is charged.
Effect of the finding
The recognition as well as the non-recognition of the state justice administration binds all courts and administrative authorities in Germany. With the recognition of the foreign divorce, the marriage is also considered divorced for the German legal area - retrospectively to the time when the foreign decision becomes final.
The registry office at the place of residence or at the place of the intended marriage and the responsible regional justice administration can provide more information on the application process. A form provided for this purpose should be used for the application. This is available from the registry offices, the state justice administrations and also from the German diplomatic missions abroad. It can also be downloaded from the homepage of the Senate Department for Justice in Berlin, where other useful information is also published.
If another marriage is entered into abroad before the dissolution of the first marriage has been recognized by the competent regional judicial administration, the second marriage is tainted with the stigma of "bigamy" and can therefore be canceled. Such situations can arise, for example, if the second marriage is concluded in a country that does not require a foreign fiancé to be married. Difficulties can also arise in the case of dual states who have both the German and the nationality of the sentencing state, even if the second marriage was concluded in good faith. In these cases, however, the marriage annulment procedure is suspended so that the recognition procedure can be rescheduled. The recognition has retroactive effect on the date on which the foreign decision becomes final. If the foreign divorce of the first marriage is recognized, the initially bigamic marriage is "healed".
The procedure for the decision on the recognition of the foreign decision in matrimonial matters fulfills the important purpose of creating clarity about the existence or non-existence of a marriage. A large number of different legal consequences depend on the question of whether two people are married to each other. Because a marriage has far-reaching consequences under tax law, immigration law, social law and civil law - for example the legal inheritance law of the spouse. There are therefore good reasons to let a specialized authority make a final decision on the recognition of a foreign divorce with effect for all German authorities and courts.
However, the recognition by the state administration of justice extends exclusively to the dissolution of the marriage bond. Any regulations made in the foreign decision on matters ensuing from the divorce (maintenance claims, pension compensation, claims from matrimonial property law) are not affected by the decision of the state judicial administration. If there is a dispute or a need for further regulation in Germany, the domestic civil courts are responsible for this.
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