Marriage - classification of a civil partnership or same-sex marriage entered into abroad

Here you will find information on the legal status of a same-sex civil partnership or same-sex marriage concluded in a foreign country before and after October 1, 2017.
 

Circular from the Federal Ministry of the Interior dated 25.09.2017 - V II 1 - 20103/48#4:

Legal classification and civil status registration after September 30, 2017 of civil partnerships established abroad or marriages concluded abroad before and after the Act on the Introduction of the Right to Marriage for Persons of the Same Sex came into force

1. civil partnership established abroad before October 1, 2017, which has been subsequently certified in a domestic civil partnership register in accordance with Section 35 PStG.

A civil partnership established abroad is subject to the substantive provisions of the registering foreign state (Article 17b (1) EGBGB), irrespective of the date of establishment. If the civil partnership established abroad has been subsequently notarized in Germany in accordance with § 35 PStG, this does not constitute a change of status. The notarization in the German register only has a declaratory effect; the registration in the state in which the partnership was formed remains decisive for the link in Article 17b (1) EGBGB. The civil partnership established abroad can therefore not be converted into a marriage in Germany by the civil partners making a declaration in accordance with Section 20a LPartG and notarized in the marriage register. This also applies if the applicable foreign substantive law provides for a conversion comparable to German law. The conversion can then only take place in accordance with the applicable foreign law. However, the civil partners could conclude the marriage in Germany without the civil partnership having to be dissolved beforehand, because the existing civil partnership with the same person does not constitute an obstacle to marriage under Section 1306 BGB.

The domestic civil partnership entry is continued in accordance with the provisions of civil status law; if the civil partners marry each other, the civil partnership entry is completed by a subsequent notarization.

2 . civil partnership established abroad before October 1, 2017, which has not yet been subsequently certified in a domestic civil partnership register in accordance with Section 35 PStG.

The explanations under 1 apply. The civil partnership established abroad can be continued as such in Germany and - since § 35 PStG continues to apply - can be subsequently certified in the domestic civil partnership register.

3 . civil partnership established abroad after September 30, 2017.

The civil partnership is established abroad at a time when only the legal institution of same-sex marriage is available in Germany. However, as the establishment of a civil partnership continues to be governed by the substantive provisions of the registering state (Article 17b (1) EGBGB), a civil partnership validly established abroad continues to be regarded as valid from the perspective of the German legal system. § Section 35 PStG continues to apply, so that a civil partnership established abroad in accordance with the substantive provisions applicable there can be subsequently notarized in the domestic civil partnership register. Even after notarization, the civil partnership is subject to foreign law; subsequent notarization does not result in a change of statute. In all other respects, the comments under 1. apply (subsequent conversion into a marriage in accordance with § 20a LPartG is not possible, but marriage without prior dissolution - even without subsequent notarization - of the civil partnership).

4 . same-sex marriage entered into abroad before October 1, 2017, which has been subsequently certified in a domestic civil partnership register in accordance with Section 35 PStG.

The same-sex marriage was entered into abroad at a time when it qualified as a civil partnership in Germany. Particularly in view of the abolition of the cap under Article 17b (4) EGBGB - old, the "retroactive effect" of the marriage concluded abroad arises from the law and its justification. Same-sex marriages entered into abroad therefore take full effect in Germany from the time of the marriage. It is also accepted that same-sex marriages that were entered into before the LPartG came into force (August 1, 2001) will have "retroactive effect". The marriage can be subsequently certified in the marriage register upon application in accordance with § 34 Paragraph 1 Sentence 4 PStG. The registry office that subsequently certifies the marriage notifies the registry office that maintains the civil partnership entry; this becomes invalid due to the notification that triggers a subsequent certification.

If the spouses residing in Germany were listed as "civil partners" in the register of residents or other offices (e.g. tax office, health insurance fund) due to their marriage abroad, the retroactive validity of the same-sex marriage concluded abroad makes these entries incorrect; a correction would have to be made by the (now) spouses themselves.

5 . same-sex marriage entered into abroad before October 1, 2017 that has not yet been subsequently notarized in a domestic civil partnership register in accordance with Section 35 PStG.

Marriages entered into abroad are upgraded by the new statutory regulation and can be subsequently recorded in the marriage register upon application in accordance with Section 34 (1) sentence 4 PStG. Otherwise, the comments on 4.

6. same-sex marriage entered into abroad after September 30, 2017. The marriage is also recognized as such in Germany and can be subsequently recorded in the marriage register.