Legal Guide for Same Sex Marriage in Germany: How to register as a foreigner and what documents to bring?
How can we marry in Germany?
Since 1 October 2017, same-sex couples have been able to marry in Germany. This was decided by the Bundestag on 30 June 2017. (See: Marriage Equality in Germany - A Time Line)
1. Competence and registration for Same Sex Marriage in Germany
The registry offices are responsible for the marriage ceremony. Partners, who want to get married, have to apply for registration at the registrar’s office, in whose jurisdiction one of the partners holds his domicile or usual place of residence.
If neither partner has their domicile or usual place of residence in Germany, they may register at any registrar’s office in the Federal Republic of Germany (§ 12 par. 1 PStG). That means in Germany, two foreigners can also marry. There is no need for a residence or permanent residence in Germany. You can therefore enter into the marriage during a holiday in Germany.
The application must be made by both partners in person. In case, one of the partners is unable to attend, it is possible to authorize the other partner in writing to do so. If both partners are unable to appear, due to valid reasons, the application can be submitted in writing or presented by an authorized representative. In these cases, partners have to affirm in person their application’s statements upon establishment of the Civil Union. (§§ 28 par. 1, 29 par. 1, 30 PStV).
The establishment of the Civil Union does not necessarily have to take place in the registrar’s office, where the application was made. Partners can choose a different registrar’s office to complete/conclude this procedure.
After determination that all the requirement of a Civil Union have been met, the registrar’s office, where the application was filed, issues a written confirmation that a Civil Union may be established. This confirmation is valid for six months at the registrar’s office, where the Civil Union is intended to be concluded (§ 13 par. 4 PStG).
2. Which documents do we need to apply for a (Same Sex) Marriage in Germany?
2.1. The necessary papers
When registering the marriage, the partners must demonstrate their identity, their names, their family status and their domicile for their jurisdiction.
Therefore, partners have to present the following:
- Valid Passport, ID or any other official proof of identity, including photograph of the holder. Foreigners whose nationality is not specified in the official Proof of Identity must establish their nationality through a certificate from the responsible authority in their home country.
- If partners are registered in Germany, a residence permit issued by the reporting authority of the main apartment (not a mere registration certificate), with an indication of the family status, nationality and place of residence, unless the registry office and the registration office belong to the same municipality
- if the partners want to justify the marriage not at the office of the main apartment, but the second residence, additionally a certificate from the registration authority of the second residence,
- A certified expression from the birth register. A mere birth certificate is not enough.
- For persons who have been married or partnered with a third person before, a marriage certificate of the predecessor or a life partnership certificate of the life partnership with dissolution notice. If the dissolution of the marriage or life partnership certificate is not registered, the separation judgment with legal force or the death certificate.
- If the last marriage or life-partnership was not established at a German registrar’s office, dissolution of other pre-marriage or other pre-life-partnerships has to be proven, if the respective examination was not yet carried out by a German registrar’s office on the occasion of a former marriage or establishment of former life-partnership.
All documents must be submitted in the original. Foreign documents must be presented together with a translation by an authorized translator in Germany. Whether and in which form the foreign documents must be certified, you can infer from the following land lists (see 2.3).
Certificates may not be older than six months, certificates of residence of the registrar’s office (Melde-Behörde) may not be older than 14 days.
2.2. Certificate of no impediment, or proof of not being married?
According to Section1309 of the German Civil Code (BGB), foreigner nationals whose marriage in Germany is subject to foreign law should not enter into a marriage until they have provided documentary evidence from the authorities of their country of origin that the marriage does not conflict with the law of that country.
The President of the Higher Regional Court ("Oberlandesgericht”) may under certain conditions, grant exemption from the need to provide such a "certificate of no impediment”, or "Ehefähigkeits-Zeugnis”.
In fact, Section 1309 BGB is generally not applicable to foreign nationals who want to enter a same-sex marriage in Germany, even if their home country allows these marriages. According to Art. 17 para. 4 in connection with paragraph 1 of the Introductory Act to the Civil Code (EGBGB), same-sex marriages entered into in Germany are always subject to German law, never foreign law.
Foreign nationals must of course also prove that they have the right to marry. They therefore have to provide proof that they are not married, the "Ledigkeits-Bescheinigung".
In terms of substance, there is no difference between the two certificates, the certificate of no impediment and the proof that a person is not married. It was in any case the usual practice of registry offices to require foreign nationals wishing to enter into a civil partnership in Germany to submit the same documents as foreign nationals who wish to marry in Germany.
2.3. Country lists
The following special regulations apply, according to a foreign national’s country of birth. These are listed in:
- Länderverzeichnis der "Kölner Liste online" (Cologne List of countries) (link in German)
- Länderverzeichnis der "Liste der bayerischen Oberlandesgerichte" (List of countries issued by the Bavarian Upper Courts) (link in German)
It is recommended to study both lists. Special terms in the respective lists have the following meaning:
- Affidavit: (same meaning as in English); written declaration in place of oath, to verify/authenticate a claim of facts.
- Legalization: legalization is carried out by consular officials at German Embassies or Consulates. Legal basis of their function is § 13 Consular law, which states: "Consular officials are authorized to legalize public documents, issued in their jurisdictional area. The legalization confirms the signature, the capacity, in which the undersigning official has acted, and, if applicable, the authenticity of the seal, with which the document is sealed. The legalization is affected by entry-note on the document." Precondition of the legalization by the German foreign representation is the authentication of the competent authority in the home country.
- Apostille: Apostille is a simplified form of legalization, which confirms the authenticity of a public document, which has, for this reason, presented in the original version. Apostille is given by an authority of the country, which has issued the document. A participation of a German foreign representation is not required, different from legalization.
Which authority granted the Apostille in the country concerned, can be found here.
- Special examination rules: In several countries, German foreign representations have stopped the legalization of documents. They charge local attorneys with the examination, if the statements of facts of the case in that respective document are correct. The partners cannot apply for the respective examination themselves, but the examination is initiated through the registrar’s office (Standesamt) by request of administrative aid, after the Partners have furnished all necessary documents to the registrar’s office. Countries, in which these examinations are implemented, are listed here, section: “Urkunden-Verkehr: Merkblätter”. Under this link you can download recommendations of the respective German foreign representations (Merkblätter) concerning the examination procedures and documents which have to be presented.
3.4. Problems obtaining papers
Some states only issue proof that a person is not married if the prospective spouse is also named. Others require (additionally) notarized confirmation of the engagement. This discloses to the foreign national’s home country that s/he wishes to enter into a same-sex marriage. This can be a problem if homosexuals are marginalized or persecuted in the country in question.
If foreigners do not want to reveal to the authorities of their country of origin that they want to enter into a same-sex marriage in Germany and need a certificate to demonstrate eligibility, they can also state that they want to marry a different-sex partner in Germany and need a certificate of no impediment. If the domestic authorities insist on the foreign national providing the personal details of their partner, s*he can enter the details of a friend.
This is not indirect document forgery in the sense of Section 271 of the German Criminal Code (StGB). What matters for legal purposes is the statement that the document serves to provide evidence of, i.e. confirmation that the foreign national is not married, or is single. This confirmation is correct. It is immaterial in terms of the law that the foreign national has provided incorrect information in order to obtain this certificate.
However, it is advisable in such cases for foreign nationals to provide the personal details of a person who actually exists, and for them to be able to reproduce these details without hesitation upon request. Also, as a precautionary measure, they should inform the person concerned of their intention and ask for their consent.
If there are other major problems obtaining necessary paperwork, the person can ask the registrar if he or she would be happy with an affidavit, or personal declaration under oath. This is provided for in Section 9 para. 2 PStG (Civil Status Act):
Unfortunately, registrars are highly reluctant to consent to this approach. At any rate, in the many cases we have advised on, we have never experienced a case where the registrar has been satisfied with an affidavit, despite this causing delays of many months to the conclusion of a civil partnership. Other countries take a far more flexible approach to such cases – without any notable rise in bigamy in the countries concerned as a result.
In such cases, it may be advisable first to marry abroad, e.g. in Denmark or Las Vegas in the US and afterwards choose German law as the governing law in order to benefit from the general effects of marriage in accordance with Art. 17b para. 5 sentence 2 in conjunction with Art. 14 Para. 1 No. 1 of the Introductory Act to the Civil Code (EGBGB). It is possible to implement this choice of governing law by repeating the marriage in Germany (see here for more information (in German only) on the choice of governing law).
There are agencies in Denmark that organize marriages, including taking care of the paperwork, and negotiate a solution with the competent authorities if there are problems with documents. The agencies can be found on the internet.