The woes of bi-cultural divorce

Sascha, Aurélie, Erwin, Astrid, Camille, Julia and Quirin are between the ages of 18 months and 7 years old. They all have one French and one German parent and been involved in a messy separation. They all now find themselves at the centre of a war without mercy between their parents and each country’s legal system. Of the 140,000 bi-national couples that separate each year throughout the European Union, 30,000 of these divorce in Germany. To make the process less painful, fourteen European Union countries, including Germany and France, signed a long-awaited divorce agreement last June. “A historic moment,” German Justice Minister, Sabine Leutheusser-Schnarrenberger said when it was signed. The agreement will enter into force in early 2011 [see below].

The fourteen EU signatories agreed on a common rule: in case of conflict, the divorce will be pronounced in the country in which the couple lived before they separated. This is a major improvement because until now, whichever partner filed first in the court of the country of their choice determined the legal system under which the separation was decided. “In the case of a Franco-German couple, it was in the father’s interest to file for divorce in France where child support payments are lower. And for mothers the courts were more favourable in Germany,” explained Jean-Patrick Revel, a French family law specialist based in Berlin.

“But for custody matters and the legal residence of the children, this new law won’t change much,” he added. “Existing international laws already stipulate that whatever concerns children is determined by where they reside. The German legal system is very strict on the principal of what’s considered ‘for the good of the child’ even if this notion is open to interpretation. For the German courts, it means that children should remain where they have grown up. Therefore if a child was raised in Germany, it is very difficult to send him to France if his French mother decides to return to her country. It’s impossible to have the child leave Germany, even for a holiday, if the court thinks that there is a risk of abduction,” he said.

Many of the Jugendamt (family services) recommendations, which are often followed by the courts, increase the bitterness, anger or fears of the non-German parent. Caroline, a 38-year old mother, has not seen her son Sascha for eight months. When his parents separated, Sascha was less than a year old.

His father had previously had Caroline, who is French, interned in a psychiatric hospital. As for Alain, 45 years old and the father of a little girl who was born in Germany, he had his custody rights withdrawn because he is nearly blind. “As if someone who is visually impaired were unable to raise their own child,” he said.

Karine, the mother of two children, was able to retain custody of her son but the custody of her older daughter went to the German father. German officials reasoned that since the children “haven’t known each other very long” separating them was not a problem. These types of extreme and incomprehensible decisions are also made when both of the parents are German. But when one of the parents is a foreigner, the issue of discrimination is inevitably raised. These types of wrenching situations arise because “the Germans and the French have totally different conceptions of family law,” explained Jean-Pierre Copin, a lawyer who worked for three years on a Franco-German family mediation pilot project.

Launched in 2003 by the justice ministers of both countries, it was dropped for lack of funds. “In France, the guiding principle is that a child has a right to both parents,” Copin said. “In case of conflict, everything is done to maintain ties with both parents and, in a worst case scenario, supervised visits are organised. In Germany, the guiding principal, in cases of parental conflict, is ‘safeguarding the child’. The justice system can thus decide to end contacts between the child and one of the parents if the parental conflict is too virulent. This can force the parents to resolve their differences. But the justice system can also decide to sever the tie, even if the risk of emotional alienation exists,” he added.

All of these French parents are convinced that they have been sacrificed on the altar of Franco-German friendship and long stopped believing that France will come to their aid. The case of Françoise who, despite opposition from the father and with the approval of the German court, managed to leave Germany with her seven year old son, Fabien, won’t restore their confidence. A French court later ruled that Fabien must live with his father, with the risk that he will never return to France.

A French judge ruled that the mother had settled too far from a German school and that, since the father spoke only German, the risk that the child’s relationship with his father would be severed was too great. The French parents of Franco-German children long stopped hoping for a similar decision in Germany. “I’ve stopped believing that one day the German courts will condemn a German woman for attempting to separate a child from its father,” said Alain.

“Even when, as in my case, psychological tests state that she is incapable of raising her child,” he added.

(translated from French by Pat Brett)

European legislation

Divorce without borders

The European Union has passed legislation intended to “simplify international divorces,” said the Dutch daily Trouw. The EU Council of Ministers, on December 20, approved a procedure that allows bi-national couples to “choose the legal system they want to apply” to their divorce proceedings, the paper explained. The proposal was adopted by the EU parliament in mid-December. This is the first application of the notion of re-enforced cooperation which allows countries with a same position to adopt legislation without the approval of all 27 EU members, the paper noted. International divorces concern 13% of the 122 million marriages celebrated each year in Europe. The measure was adopted by 14 countries, including Malta where divorce is not legal, as well as France and Germany.