A German engineer and his Spanish wife have lived in Lisbon for six years. A British couple retired to the Algarve. An Italian woman married to a Turkish national has moved back to Milan with the children while her husband stayed in Istanbul. In each case the marriage is ending, and in each case the first legal question is not why, but where: which country's court may hear the divorce, whether a court in the other spouse's country can be used instead, and which country's divorce law will be applied once a court is chosen. Inside the European Union two regulations answer those questions, and the answers decide the cost, the length and often the outcome of the divorce.
This guide is written for people living in, or married to someone from, an EU Member State who face a divorce with an international element, and for the advisers helping them. It follows the text of Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, recognition and enforcement in matrimonial matters and matters of parental responsibility, known as Brussels II ter, which applies to proceedings started on or after 1 August 2022, and of Council Regulation (EU) No 1259/2010 of 20 December 2010 on the law applicable to divorce and legal separation, known as Rome III. It covers the divorce itself; the financial consequences, maintenance and the children are governed by other instruments and are mentioned only where they change the strategy. Denmark does not take part in Brussels II ter, and the United Kingdom left the EU regime at the end of 2020; both are covered in the section on non-EU spouses.
The first question: which court has jurisdiction (Brussels II ter, Article 3)
Article 3 of Brussels II ter lists the grounds on which the courts of a Member State have jurisdiction in divorce, legal separation and marriage annulment. The courts of a Member State have jurisdiction if, in its territory: the spouses are habitually resident; the spouses were last habitually resident, in so far as one of them still resides there; the respondent is habitually resident; in the event of a joint application, either of the spouses is habitually resident; the applicant is habitually resident, if he or she resided there for at least a year immediately before the application; or the applicant is habitually resident, if he or she resided there for at least six months immediately before the application and is a national of that Member State. Separately, the courts of the Member State of the nationality of both spouses have jurisdiction.
Three features of that list matter in practice. The grounds are alternative, not ranked: any court that satisfies one of them may hear the case, so several countries' courts often have jurisdiction at the same time. The grounds are built on habitual residence, a factual concept about where a person's life is centred, not on domicile, nationality or the place of the wedding, except for the joint-nationality ground and the six-month ground. And the grounds favour the person who stays or the person who returns home and waits: a spouse who leaves the family home in Lisbon and moves to Madrid can sue in Spain after six months if Spanish, after a year if not; a spouse who stays in Lisbon can sue there at once.
Article 6 adds the residual rule. Where no court of a Member State has jurisdiction under Article 3, jurisdiction is determined by each Member State's own law; but a spouse who is habitually resident in a Member State, or who is a national of one, may be sued in another Member State only under the Regulation's own grounds. Article 3 therefore protects an EU-resident or EU-national respondent from being dragged before a court chosen under a Member State's domestic long-arm rules.
Where the couple lives outside the EU, or one spouse is not European
The Regulation does not require either spouse to be an EU national. A Turkish husband and an Italian wife who lived together in Milan, where the wife still lives, can divorce in Italy under the "last habitual residence, one spouse still resides" ground; the husband's nationality is irrelevant. Conversely, a couple of two EU nationals living in Istanbul or Dubai have no EU court under the habitual-residence grounds unless one of them moves back; the joint-nationality ground gives them the courts of their common Member State, and a spouse who returns home can rely on the six-month or one-year ground. Article 6(3) adds that, against a respondent who is neither habitually resident in nor a national of a Member State, a national of one Member State habitually resident in another may use that State's domestic jurisdiction rules like its own nationals.
Two countries need a separate word. Denmark is not bound by Brussels II ter, so a Danish court's divorce is not recognised under the Regulation and jurisdiction against a spouse in Denmark follows national rules and older conventions. The United Kingdom has been outside the EU regime since the end of the transition period on 31 December 2020; a divorce between a British spouse in England and a Spanish spouse in Madrid is decided, on the Spanish side, under Brussels II ter, and on the English side under domestic jurisdiction rules, with recognition of the resulting judgment governed by the 1970 Hague Convention on the Recognition of Divorces where it applies and otherwise by national law. In that situation the choice of forum is a genuine strategic decision, because the two regimes do not coordinate with each other.
The race to the court: lis pendens (Article 20)
Because several courts often have jurisdiction, the Regulation decides between them by a mechanical rule. Article 20(1) provides that where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised must of its own motion stay its proceedings until the jurisdiction of the court first seised is established, and Article 20(3) that once that jurisdiction is established the second court must decline jurisdiction in its favour. There is no weighing of which court is more appropriate; the first valid application wins.
The practical consequence is the phenomenon lawyers call the race to the courthouse. A spouse who expects the other to file in a country whose law or procedure is less favourable has an incentive to file first in a country whose courts have jurisdiction under Article 3. The rule rewards preparation: knowing which grounds apply, having the documents translated and lodging the application before the other side does. It also means that a spouse served with foreign proceedings must check immediately whether an earlier application exists elsewhere, because an application filed abroad a day earlier displaces the later one.
The second question: which law applies (Rome III, Articles 5 and 8)
Having jurisdiction does not mean applying one's own law. Rome III is a regulation adopted by enhanced cooperation; it binds only the participating Member States, seventeen at the time of writing, among them Germany, France, Italy, Spain, Portugal, Austria, Belgium, Luxembourg, Malta, Greece, Hungary, Romania, Slovenia, Bulgaria, Latvia, Lithuania and Estonia. A court in a participating state applies the law the Regulation designates whether or not that law is the law of a participating state (Article 4). Courts in non-participating Member States, among them the Netherlands, Ireland, Sweden, Finland, Poland and the Czech Republic, apply their own conflict-of-laws rules, which in several of those countries simply means the law of the forum.
Rome III's first rule is choice. Under Article 5(1) the spouses may agree to designate the law applicable to their divorce and legal separation, provided it is one of: the law of the State where they are habitually resident when the agreement is made; the law of the State where they were last habitually resident, in so far as one of them still resides there; the law of the State of nationality of either spouse; or the law of the forum. The agreement may be concluded or modified at any time up to the moment the court is seised, and during the proceedings if the law of the forum so provides (Article 5(2)-(3)). It must be in writing, dated and signed by both spouses, an electronic record that provides a durable record counting as writing, and additional formal requirements of the spouses' habitual residence apply where that state lays them down (Article 7). A choice-of-law clause in a marriage contract, or a separate agreement signed when the couple moves abroad, is therefore effective and is the single most useful tool for a couple who want predictability.
The second rule is the default. In the absence of a choice, Article 8 subjects the divorce to the law of the State where the spouses are habitually resident when the court is seised; failing that, where they were last habitually resident, provided the residence did not end more than a year before the court was seised and one spouse still resides there; failing that, of which both spouses are nationals when the court is seised; and failing that, the law of the forum. Article 10 adds a safeguard: where the applicable law makes no provision for divorce, or does not give one spouse equal access to divorce or separation on grounds of sex, the law of the forum applies. Article 12 allows a court to refuse to apply a designated foreign rule only where doing so would be manifestly incompatible with its public policy.
What the combination means for a couple: three scenarios
Scenario one: same country, different nationalities. A German husband and a Spanish wife live in Lisbon. Portuguese courts have jurisdiction on the habitual-residence ground; so do German and Spanish courts only if a spouse returns home and waits six months. Absent a choice, a Portuguese court applies Portuguese law under Article 8(a) of Rome III, because Portugal participates. If the couple had signed a choice of German law when they married, the Portuguese court would apply German divorce law instead.
Scenario two: one spouse has gone home. The Italian wife has moved back to Milan with the children; the Turkish husband remains in Istanbul. Italian courts have jurisdiction on the last-habitual-residence ground, because the family last lived in Milan and she still does, or on the six-month nationality ground. Italy participates in Rome III: absent a choice, Article 8(b) points to the law of the last common habitual residence, Italian law, provided that residence ended less than a year before the application and she still lives there; otherwise the cascade continues. A Turkish court might also have jurisdiction under Turkish law, and a judgment from Istanbul would have to be recognised in Italy under Italian rules on non-EU judgments rather than under the Regulation, which is why the wife's lawyer files in Milan first.
Scenario three: expats outside the EU. Two French nationals living in Dubai. No habitual-residence ground points to an EU court, but the joint-nationality ground gives the French courts jurisdiction. A French court, France being a participating state, applies French law under Article 8(c) absent a choice, since both spouses are French. If only one were French, the cascade would end at the law of the forum under Article 8(d) once the residence grounds failed.
| Question | Instrument and provision | Rule |
|---|---|---|
| Which EU court may hear the divorce | Brussels II ter, Article 3 | Courts of the Member State of the spouses' habitual residence, last common habitual residence if one still resides there, the respondent's habitual residence, either spouse's habitual residence on a joint application, the applicant's habitual residence after one year (six months if a national), or the common nationality |
| No EU court under Article 3 | Brussels II ter, Article 6 | National jurisdiction rules apply, but an EU-resident or EU-national spouse may be sued in another Member State only under the Regulation's grounds |
| Two courts seised | Brussels II ter, Article 20 | The court second seised stays and then declines in favour of the court first seised; no forum non conveniens |
| Recognition of the divorce | Brussels II ter, Articles 30 and 38 | Recognised in every Member State without special procedure; civil-status records updated on a final judgment; refusal only for public policy, default of appearance without proper service, or irreconcilable judgments |
| Choice of applicable law | Rome III, Articles 5 and 7 | Law of current or last common habitual residence, of either spouse's nationality, or of the forum; in writing, dated and signed, at the latest when the court is seised |
| Applicable law without a choice | Rome III, Article 8 | Law of the common habitual residence; failing that the last common residence ended less than a year earlier; failing that the common nationality; failing that the forum |
| Foreign law that denies divorce | Rome III, Articles 10 and 12 | Law of the forum applies where the designated law provides no divorce or discriminates by sex; public policy refusal only where manifestly incompatible |
| Transitional rule | Brussels II ter, Article 100 | Applies to proceedings instituted on or after 1 August 2022; Regulation 2201/2003 continues to govern earlier decisions |
Recognition: making the divorce count in the other country
A divorce granted by a court with jurisdiction under Brussels II ter is recognised in the other Member States without any special procedure being required (Article 30(1)), and no procedure is needed to update the civil-status records of another Member State on the basis of a divorce judgment against which no further appeal lies (Article 30(2)). The grounds for refusing recognition of a divorce are exhaustive and narrow (Article 38): manifest incompatibility with the public policy of the State where recognition is sought; a judgment given in default where the respondent was not served with the document instituting the proceedings in sufficient time and in such a way as to arrange a defence, unless the respondent has accepted the judgment unequivocally; and irreconcilability with an earlier judgment between the same parties in the recognising State or in another State that qualifies for recognition. A spouse who ignores foreign proceedings therefore rarely gains anything: a properly served default judgment travels as well as a contested one.
Outside the Regulation, recognition depends on the recognising country's own rules. A Turkish, Swiss, British or American divorce is recognised in an EU Member State under that State's private international law or an applicable convention, and the reverse is also true: a Portuguese divorce is recognised in Türkiye only after a recognition and enforcement action before the Turkish courts. Couples with assets or civil-status consequences in a non-EU country should plan for that second step from the outset.
Practical guidance
Sign a choice-of-law agreement early. If both of you are habitually resident in a participating state, or one of you is a national of one, Article 5 of Rome III lets you fix the law of the divorce in writing while the marriage is intact. It costs little and removes the incentive to race.
Map the available courts before you move. A move across a border changes the Article 3 grounds within six months to a year. A spouse planning to return home should know whether waiting six months secures jurisdiction and what the other spouse can file in the meantime.
File first if the forum matters, and check for earlier filings if you are served. Article 20 does not weigh convenience. The date of seisin decides.
Keep the divorce and the money separate in your planning. Jurisdiction over maintenance, over the matrimonial property regime and over the children follows different rules; the court that hears the divorce is not automatically the court that divides the assets or decides where the children live.
Plan the recognition step for non-EU countries. A judgment that will need to be recognised in Türkiye, Switzerland, the United Kingdom or the United States should be obtained in a form, with service and reasons, that those systems accept, and the recognition action should be budgeted from the start.
Frequently asked questions
Can I divorce in my home country if we live abroad?
Under Article 3 of Brussels II ter you may apply in the Member State where you are habitually resident once you have lived there for a year, or for six months if you are a national of that State; and the courts of the Member State of which both spouses are nationals always have jurisdiction. A spouse who returns home therefore gains a forum after six months or a year; the other spouse can file in the country of the last common residence in the meantime.
Does it matter where we got married?
No. Neither Brussels II ter nor Rome III gives any role to the place of the wedding. Jurisdiction turns on habitual residence and nationality, and the applicable law on the spouses' choice or, failing that, on habitual residence and nationality at the time the court is seised.
My spouse filed in another EU country first. Can I still file at home?
Under Article 20 of Brussels II ter the court second seised must stay its proceedings and, once the first court's jurisdiction is established, decline in its favour. If the first court has jurisdiction under Article 3, your later application will be declined; the remedy is to check the foreign court's jurisdiction and to defend there.
Can we choose which country's divorce law applies?
In the seventeen Member States that take part in Rome III, yes. Article 5 allows spouses to choose the law of their current or last common habitual residence, of the nationality of either spouse, or of the forum, by a written agreement dated and signed by both, concluded at the latest when the court is seised. Courts in non-participating states, such as the Netherlands, Ireland, Sweden or Poland, apply their own conflict rules.
Will a divorce from one EU country be recognised in another?
Yes, without any special procedure (Article 30 of Brussels II ter), and civil-status records are updated on a final judgment. Recognition may be refused only for manifest incompatibility with public policy, a default judgment where the respondent was not properly served in time, or irreconcilability with an earlier judgment (Article 38). Denmark is not bound, and the United Kingdom is outside the regime since 2021.
Does the court that grants the divorce also decide the money and the children?
Not automatically. Brussels II ter governs the divorce and, separately, parental responsibility, which follows the child's habitual residence (Article 7). Maintenance and the matrimonial property regime are governed by other EU instruments and national rules. Plan the three questions together, because the answers can point to different courts.