Residence Permit After Divorce in Germany

A divorce is undoubtedly not only an emotional situation but also a legal challenge. This can be an additional burden for those affected if it takes place abroad. Especially if your German residence permit is linked to your marriage.

To provide our clients with the necessary overview of the legal options in such a situation, the German law firm Schlun & Elseven Rechtsanwälte offers skilled and committed legal assistance. Our German immigration and family lawyers have in-depth expertise and the necessary empathy to make this emotionally demanding situation as easy as possible for you.

If you have any questions regarding the validity of your residence permit after divorce or any other legal concerns and would like personalised legal advice, please do not hesitate to contact us. We are committed to ensuring that your rights and interests are always protected.

Marital Union as the Legal Basis for a Residence Permit

A residence permit for Germany can result from a marriage to a German citizen. In this case, it can be particularly troubling if divorce proceedings begin. However, it is not automatically the case that the right to reside in Germany is withdrawn after a divorce. Instead, some safeguards are in place to protect people from such an event. This is regulated in Section 31 of the German Residence Act (AufenthG).

If a couple has been married in Germany for three years, the non-EU partner’s residence permit is based on Section 28 AufenthG. If the marriage is dissolved, the partner will likely be granted a further year of residence – especially if there are no reasons to the contrary. During this time, the partner is best advised to find another reason to be allowed to stay in Germany. This is because the German residence permit is no longer based on the marriage. For example, if they are not working during their marriage, it would be advisable to look for a job to obtain a work permit. Whether children are involved in this process also plays a significant role in the procedure.

Child custody in divorce cases

Child custody is a prominent issue in the event of a divorce. As a rule, parents receive joint custody of their children after a divorce. If one partner wishes to obtain sole custody of the child – especially in cases where the couple was married – the court must be asked to decide. The award of joint custody means that one parent cannot move the child to another jurisdiction without the permission of the other custodial parent. Should one partner attempt to do so, the German state can bring charges of international child abduction.

A residence permit can also be extended by one year if the spouse has died during their stay in Germany.

What Should You Do If Your Marriage Has Lasted Less Than Three Years?

In situations where the marriage has lasted less than three years, significant difficulties may arise. Here, too, it is advisable to base the residence permit on something other than the marriage and, if possible, to look for another option – work, study, or training.

If the marriage has been dissolved after less than three years, it is less likely that a one-year extension will be granted. However, it is most likely to be granted in the following situations:

• If domestic abuse or violence is proven to be a factor in the divorce. German law does not allow a person to remain in an abusive marriage for fear of losing their residency. The loss of a residence permit cannot be used as a reason for not filing for divorce either.
• If the couple has a child together. If the child is resident in Germany and has German citizenship, this will help in any case.
• The partner in question has claimed their extension based on their skills as an employee or trainee.

The German state is less inclined to consent and grant an extended residence permit if the applicant in question does not have the means to support themselves. It is advisable to enter an employment relationship in Germany and try to extend the stay for this reason and not solely through marriage. In this case, too, work means skilled labour. It is also helpful if the applicant has started vocational training in a field with a labour shortage in Germany.

Child and Spousal Maintenance in Divorce Cases

Another aspect of divorce in Germany is the question of maintenance payments. The regulations for child maintenance are derived from Sections 1601-1615 of the German Civil Code (BGB). These essentially state that in cases where both partners are in Germany, there is a legal obligation to pay child maintenance. An exception can be made if the person concerned would not have enough to support themselves if the payments continued.

In cases where the spouses (and therefore the child in question) reside in different countries, it depends on where they are located. If both parents live in countries that have signed the Hague Protocol on Child Maintenance, that country will likely adapt its decision on maintenance payments to the German court. If the country in question is not a member of the Protocol, it may present a more significant challenge.

Regarding spousal maintenance payments, the payments must be made during the year of separation until the divorce. This legal requirement can only be waived in exceptional cases. However, continued spousal support payments must be requested after the official divorce. They can be continued for several specific reasons. For example, the partner is unable to support themselves, the partner needs help to fund further education, the partner suffers from an illness that prevents them from working, the partner was the primary child carer, or the partner is unable to work due to age.

However, it is important to note that child support payments take precedence over spousal support payments.

If you have any further questions about the validity of your residence permit after divorce and would like personalised legal advice, please contact us directly using the contact form below.