Divorce and separation are realities of modern life. This holds true for Germany as it does for many other parts of the world. Divorce proceedings are not pleasant on anyone but there can be further worries if your residence permit is linked to your marriage. Our family law page has advice on issues such as the German divorce procedure, child custody, child support and prenuptial agreements.
This article will deal directly with the issue of how divorce in Germany impacts the residence permit of non-EU citizens. Can non-EU citizens keep hold of their residence permit after divorce? In this article we will provide an overview of the law and some general legal advice, however, this is just general advice. If you want more personalised service to contend with the facts of your case then make sure to contact our firm directly.
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If you want clear advice regarding the law relating to the validity of a residence permit after divorce please contact us today. Our lawyers are on-hand and ready to provide you with the legal representation you deserve.
Residence Permit After Divorce: What Happens Next?
It may be the case that your residence permit in Germany is derived from your marriage. In this instance it can be particularly worrying if divorce proceedings begin. However, it is not an automatic rule that a person’s right to remain in Germany is removed following a divorce. In fact there are some protections in place to protect people from such an event from occurring. This is regulated by §31 of the German Residency Act (Aufenthaltsgesetz).
If a couple have been married for three years in Germany the non-EU partner’s residence permit is based on §28 of the German Residency Act. Should the marriage dissolve that partner will likely be granted an extra year of residency – particularly if there is no reason not to grant it. During this time, that partner is best advised to find another reason to be allowed to stay in Germany. In this instance having their permit to remain in Germany be not based on their marriage. For example, if they were not working during their marriage it would be advisable to seek a job in order to have a work permit granted to them. Issues such as whether there are children involved also plays a major role in proceedings.
In this case the job would have to be seen as skilled work.
A residence permit can also be extended by a year in cases where the spouse has died while residing in Germany.
Residence Permit after Divorce: Marriage Last Less Than Three Years
In situations where the marriage has lasted under three years there can be more difficulties. Once again, it is advisable to not have your residence permit based solely on your marriage and if possible look for another outlet – whether it is through working, studying or completing an apprenticeship.
In a case where the marriage has dissolved after less than three years the one year extension is less likely to be granted. In fact it is in the following situations where it will most likely be granted:
Where domestic abuse or violence has been shown to play a factor in the divorce. German law does not permit for a person to be kept in an abusive marriage for fear of losing their residency. Losing their residency permit can also not be used as a reason to not get a divorce.
Where the couple have a child together. If the child is settled in Germany and with German citizenship this will further help the case.
The partner in question has availed of an extension in their own right based on their skillset as a worker or as a vocational trainee.
The German state is less likely to look on in approval and grant an extended residency permit where the claimant in question does not have the means to support themselves. This is why it is advisable to (if possible) work in Germany and seek to extend your stay through this reason rather than solely through marriage. Once again work in this case means skilled work. Furthermore, should the claimant have started vocational training in an area where there are shortages of workers in Germany.
Child Custody in Cases of Divorce
Child custody is an important issue in the event of a divorce. Generally, the parents are given joint custody of their children in the aftermath of a divorce. If a partner wishes to be granted sole custody of the child – especially in cases where the couple in question were married – they have to apply to the court for such a ruling. Being granted joint custody means that a parent cannot remove the child to another jurisdiction to live without the permission of the other custody holder. Should a partner seek to do so they may find themselves facing charges of international child abduction.
Child Support and Spousal Maintenance in Cases of Divorce
Another aspect of divorce is the issue of support payments. When it comes to child support payments the legislation is derived from §§1601-1615 BGB. It basically outlines that in cases where the partners are both in Germany there is a legal requirement for child custody to be paid. An exception can be made where the person in question would not have enough to support themselves if they carried on with the payments.
In cases where the spouses (and thus child in question) resided in different countries from each other it is dependant on where they are located. If both parents are located in countries which have signed up to the Hague Protocol for Child Support then it is likely that country will correspond its ruling to that of the German court when it comes to deciding on child support payments. If the country in question is not a member of the Protocol it may be a more challenging prospect.
When it comes to spousal maintenance payments these payments will continue during the year of separation prior to divorce. This is a requirement during this period that cannot be easily waived. Following the official divorce however, the continuing spousal maintenance payments have to be applied for. They can continue on a number of specific grounds such as: the partner is not able to support themselves, they need help with the funding of further training, illness preventing them from work, the partner had been the primary child carer and inability to work due to age.
However, it is worth knowing that child support payments take precedence over spousal maintenance payments.
Further Questions about German Residence Permits After Divorce
If you have any further questions about the validity of your residence permit after divorce make sure to contact us directly using our contact information. Our lawyers can also answer any further questions you have on divorce law in Germany.