An About-Face in the German Law of Names: From Nationality to Habitual Residence
The German Parliament has adopted a reform of the law of names, including private international law, to enter into force in mid-2025. It includes a ground-breaking change from the classic connecting factor, nationality, to habitual residence. This seems to be a new trend: the incoming Austrian coalition government also plans a similar shift.
The Text
As of 1 May 2025, Art 10 of the Introductory Law to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) will read as follows:
1) A person’s name is subject to the substantive rules of the State in which the person has her habitual residence.
2) Spouses may, at or after the marriage, by declaration to the registry office, change their name to be used in the future in accordance with the law of a state
1. to which one of them belongs or
2. in which one of them has his or her habitual residence. …
3) The holder of parental custody may, by declaration to the registry office, determine that a child is to be given the name
1. in accordance with the law of the state to which a parent or the child belongs,
2. according to German law, if one parent has his or her habitual residence in Germany, or
3. according to the law of the state to which a person granting the name belongs. …
4) Furthermore, a person may, by declaration to the registry office, choose the law of the state to which he or she belongs for his or her name of the state to which he or she belongs. The declaration must be publicly notarized. …
The above translation, done by the author, does not include provisions that have been unchanged and new para. 5).
The Aim
The change to the habitual residence criterion was not foreseen in the original government’s bill but added by the Legal Committee of the German Parliament (Bundestag). According to its report, it intended to liberalise the law of names and improve the integration of immigrants moving to Germany. Yet the Act will also have far-reaching consequences for German nationals living outside of Germany (“expats”), whose name may in the future be governed by a different law.
Exclusion of Renvoi
The law excludes any renvoi, see the reference in Article 10(1) EGBGB to the “substantive rules”. As a result, the Private International Law rules at the place of habitual residence do not matter from a German point of view. If the country of residence accepts renvoi, it will compose the name in accordance with its own national law, since German PIL refers back. Hence, the reform is important not only for German but also for foreign authorities and tribunals. However, if the foreign PIL refers to the law of nationality and also excludes renvoi, conflicts will arise: In this case, the German court and the foreign court will determine the applicable law differently.
The Possibility to Select the Law of Nationality
The consequences of the new law are mitigated to some degree by the possibility to select the law of nationality, see Article 10(4) EGBGB. Yet this requires a declaration at the German registry office, which is not an easy feat, especially when living abroad. Moreover, the persons concerned need to be aware of this possibility in the first place. The dearth of reports over the issue in German and international media suggests this will not necessarily be the case.
Conflit mobile
If the new Act is read literally, it seems the governing law could change with every change of domicile. A German moving to Madrid could change his name from Christian Müller to “Christian Müller Müller”, since Spanish last names are composed of the names of both parents. If he then moves on to Kairo, he could be called “Christian Rainer Otto Müller”, given that Egyptian names include the first name of the father and the grand-father. A German called Graf von X could lose the “Graf von” if he decided to take a home in Austria, where noble titles are banned.
These unwelcome consequences are avoided by the principle of name continuity, which is recognised in Germany. According to this principle, the mere change of domicile does not constitute a ‘name changing event’, but only official acts like marriage or divorce. But this limits the utility of the new connecting factor for immigrants coming to Germany, who will not be able to rely on the law of their new domicile until they marry or get divorced. Another problem is that the principle of name continuity is nowhere spelled out in the new law. Foreign courts looking into the EGBGB risk simply applying the law of the current domicile. It is unlikely that they are familiar with specialised German PIL books. Let’s hope that they read this blog!
Further Reflections
The amendment was passed quite quickly. Changes of government bills by deputies are of course welcome in a democracy, but the parliamentary documents do not show any thorough discussion. While the habitual residence is the more modern connecting factor, the law of names is quite special and would have deserved some deeper reflections. After all, the name is a factor of identification and therefore should be stable. Perhaps it would have been better to offer the law of the habitual residence only as a choice (suggestion by Paul Eichmüller). Then immigrants and expats could have decided for themselves whether, where and when to change their name.
— Many thanks to Anatol Dutta and Paul Eichmüller for their critical review and helpful suggestions.