Spouse Reunification Under EU Free Movement Law

The spouses of EU citizens are recognized as beneficiary family members under Section 3 of the Freedom of Movement Act (Gesetz über die allgemeine Freizügigkeit von Unionsbürgern, FreizügG/EU) and Article 2(2)(a) of EU Directive 2004/38/EC. This means they have the right to accompany or join the EU citizen in Germany, regardless of their own nationality.

Two conditions must be met: the EU citizen must hold the right of free movement, and they must actually be exercising it. This distinction matters in practice. A spouse seeking to join a German national who has always lived in Germany does not, as a rule, fall within the scope of the FreizügG/EU. In that situation, the general Residence Act (Aufenthaltsgesetz, AufenthG) governs the application instead, with its more demanding requirements.

A valid marriage certificate is necessary, but it is not enough on its own. The right of residence requires that the couple is genuinely living together as a married couple. The authorities will look at whether the spouses share a home and whether the relationship is real in practice. Where there are grounds for suspicion that a marriage exists for immigration purposes only, the authorities are entitled to investigate.

Third-country nationals who require a visa to enter Germany must obtain one before traveling. One notable advantage of this route is that — unlike standard spouse reunification under the AufenthG — no German language test is required before entry. Provided the legal requirements are met, the visa must be issued.

After arriving in Germany, the third-country national spouse must apply for an EU residence card (Aufenthaltskarte) at the local foreigners’ authority (Ausländerbehörde) under Section 5(1) FreizügG/EU. The card is issued for five years. It is important to understand that the card itself does not create the right of residence — that right exists automatically under the law. The card is confirmation of a right that already exists. The obligation to apply for it is separate from the right itself.

For many international couples, understanding the difference between the EU free movement route and the standard AufenthG route is the starting point for planning. The key advantages of the free movement route are as follows:

• No German language requirement. There is no obligation to demonstrate German language skills before entering Germany under the EU free movement law. The AufenthG route generally requires basic proficiency at the A1 level as a precondition for the visa.
• No minimum age. The FreizügG/EU does not set a minimum age for the joining spouse. Under the AufenthG, both spouses are generally required to be at least 18 years old.
• No income threshold for the EU citizen. The EU citizen is not required to prove that they can financially support their spouse. Financial resources only become relevant where the EU citizen is not in employment or otherwise economically active.
• Stronger protection against loss of residence. The FreizügG/EU provides broader protection against expulsion and other measures that could end the right of residence than the AufenthG.

Once divorce proceedings have been initiated, the third-country national spouse retains their derived right of residence while those proceedings are ongoing. The authorities cannot issue a determination of loss of free movement rights on the basis of separation alone at this stage.

Once a divorce is finalized, the derived right of residence does not automatically continue. However, Section 3(4) FreizügG/EU provides that an independent right of residence may be retained in the following circumstances:

• the marriage lasted at least three years before divorce proceedings were initiated, with at least one year of that time spent in Germany; or
• the divorced spouse has been awarded custody of the EU citizen’s children ; or
• the spouse was a victim of domestic violence — in which case an independent right of residence arises regardless of how long the marriage lasted.

Anyone in this situation should take legal advice as early as possible, as the path to securing an independent right of residence depends heavily on the individual circumstances.

The authorities have the power under Section 2(4) FreizügG/EU to investigate whether a marriage is genuine where there are concrete grounds for suspicion. However, that power has clear limits. Blanket checks of all married couples are not permitted — specific and articulable grounds must exist before an investigation can begin. In practice, investigations typically involve questioning both spouses separately about their day-to-day life together.

Where the authorities determine that a marriage was entered into solely for immigration purposes, they may issue a formal determination of loss of free movement rights (Verlustfeststellung). Suspicion alone is not a sufficient basis for this — the deception must be established. Anyone facing this kind of investigation should seek legal representation without delay.

A particular set of circumstances arises when a German national has genuinely exercised their right of free movement — by actually living and working in another EU member state — and then returns to Germany with their third-country national spouse. In this scenario, the FreizügG/EU applies and the spouse benefits from its more favorable provisions, rather than being subject to the standard AufenthG requirements.

For this to apply, the EU citizen’s stay abroad must have been genuine and of real duration rather than a brief or nominal absence, and the couple must have been living together as a married couple during that time.

Schlun & Elseven is one of Germany’s largest immigration law firms, with over a decade of experience advising international clients on German immigration and residence law. Our lawyers work in English and support clients from across the world — whether they are applying from abroad, already in Germany, or navigating a change in circumstances such as separation or divorce.

As a full-service firm, we are also able to advise on the broader legal questions that often arise alongside immigration matters — from employment and family law to criminal defense. This means clients do not need to seek out separate representation when their situation becomes more complex.

We operate as a digital-first firm, which means our services are accessible regardless of where in the world you are based. Consultations, document review, and case management can all be handled remotely, without the need to attend our offices in person.