What is a Sham Marriage in Germany?
A sham marriage is not the same as a failing marriage or a bad marriage. A sham marriage in Germany is seen as one which has been entered into for convenience, based on gaining legal advantages for those involved or a third person. This can be in the form of obtaining a residence permit, for example. Fake marriages in this context are not designed to be a lifelong commitment but instead is a transactional arrangement entered into for a specific purpose.
Determining what exactly is a sham marriage can be difficult. Most cases aren’t simply black and white in their facts. However, certain factors help determine whether a marriage can be seen as fake. These can be read in more detail in the European Council Resolution 97/C 382/01 of 4 December 1997. Here are some of the factors considered:
- matrimonial cohabitation is not maintained,
- the spouses not meeting before the marriage,
- the lack of a common language between spouses,
- lack of appropriate contribution to marital responsibilities,
- evidence of previous marriages of convenience/sham marriages,
- financial transactions between the parties for the marriage to be contracted.
This information can be found from:
- Statements made by the parties or third parties,
- written documentation,
- information acquired during inquiries carried out.
The immigration authorities in Germany can investigate marriages they suspect to be “marriages of convenience” and make a closer examination of them. However, suspicion does not equate to guilt. If such factors are present in a marriage, it does not automatically result in them being considered as sham marriages. If you face an unfair accusation of a fake marriage, make sure to contact our legal team to examine your case in more detail!
The Reasons for Sham Marriages
There are many reasons why a sham marriage can take place. Often, a sham marriage is linked to gaining a residence permit. Our article on the topic of Family Reunification in Germany provides greater depth concerning this topic. § 30 German Residence Act allows for family reunification for spouses / registered Partners in Germany. This extends to spouses of those with a residence permit in the EU, an EU Blue Card and those in the EU for research reasons.
However, § 27 German Residence Act outlines the limits of this allowance for fake marriages/sham marriages.
§ 27 German Residence Act
(1) The temporary residence permit to enable foreigners to be joined by foreign dependants so that they can live together as a family (subsequent immigration of dependants) shall be granted and extended to protect marriage and the family in accordance with Article 6 of the Basic Law.
(1a) The subsequent immigration of dependants shall not be permitted
- 1.if it is established that the marriage has been entered into or kinship established solely for the purpose of enabling the persons immigrating subsequently to enter and stay in the federal territory or
- 2.if there are concrete indications that one of the spouses has been forced into marriage.
Immigration concerns and residence permits issues are not the only reasons behind a sham marriage, although they make up most cases. Sham marriages can also take place for benefits derived from inheritance law and other reasons.
The Dangers of Sham Marriages
If you are suspicious of a sham marriage, it can be worth contacting a lawyer. Sham marriages can involve some elements which can be worth further investigation. As stated above, under § 27 German Residence Act, one of the grounds for determining whether a marriage can be considered a sham marriage is if “one of the spouses has been forced into marriage.” Forced marriages, especially those which go against the wishes of the parties involved, increase the likelihood of domestic violence taking place within them.
Should a sham marriage be discovered, it can result in criminal liability if used to bring someone into Germany. The marriage by itself is not a criminal act, but if a person has falsified their residence permit based on a sham marriage, they can face legal consequences. Under § 95 (2) para. 2 German Residence Act using false or incomplete information to gain a residence title can result in imprisonment or a fine.
Should the marriage be found to be a sham marriage to gain a residence permit, the residence permit may be withdrawn. In turn, this may lead to deportation.
Ending a Sham Marriage
Both divorce and annulment can end sham marriages. Using an experienced family lawyer in Germany can help bring about the end of the marriage. Should the couple look for divorce in Germany, they should be aware that it involves a year of separation, may involve some level of spousal maintenance, divorce costs, and a division of the assets and property. Should the sham marriage last a sufficient amount of time for an unlimited residence permit to be applied for, then don’t be surprised if the marriage still receives an inspection. This is especially the case should it involve some of the factors mentioned above.
Alternatively, an annulment is also allowed in the case of a fake marriage under § 1314 BGB. In particular, this is of interest in cases where the marriage was forced on one of the individuals involved as (2) paragraph 4 states:
In addition, a marriage may be annulled if… a spouse was unlawfully induced to enter into the marriage by duress.
An annulment means that there is no requirement to pay divorce costs, resolve pension equalisation or have the year of separation. However, an annulment will result in the residence permit awarded due to the marriage being withdrawn. Contact a family lawyer in Germany today to find out more.
Sham Marriage: Consult with a Legal Expert
If you are in a sham / fake marriage, and have concerns about proceeding, contact a family lawyer in Germany. At Schlun & Elseven Rechtsanwälte, we are aware of the difficulties faced by those involved and the anxiety that such a scenario can bring. Our lawyers will operate in confidence to ensure that you know the consequences of any actions taken or not taken.
When it comes to reporting a fake marriage, there is a statute of limitations in place, which is five years from committing the offence involved. The marriage itself is not an offence, but the giving of falsified statements to the immigration authority (should the sham marriage have involved an application for a residence permit) is an offence. However, should the sham marriage be found after the five years have elapsed, there is still the potential for the residence permit to be withdrawn.
Carrying around the knowledge of a sham marriage can be a heavy burden. It can cause or contribute to anxiety problems, and the worry of being “found” is always there. Having a family lawyer discuss how to act in this situation can help determine the legal consequences of different actions/inactions.