German Residence Permit After Divorce

According to § 28 German Residence Act (AufenthG), the foreign spouse of a German citizen, the foreign minor unmarried child of a German citizen and the foreign parent of a minor unmarried German citizen must be granted a residence permit to exercise personal care. The prerequisites are the habitual residence of the German citizen in Germany, the securing of a livelihood and the particular requirements of § 30 AufenthG, which are as follows:

• Both spouses have reached the age of 18,
• the spouse can at least communicate in a simple manner in German and
• the foreigner fulfils the requirements for an independent residence title.

Therefore, third-country nationals can obtain a residence permit for Germany by marrying a German citizen. However, to obtain a residence permit for the subsequent immigration of a spouse, a marital partnership must be established, i.e. there is no sham marriage.

It should always be noted that a residence permit is issued for a limited period of time in Germany. An extension of the residence permit is linked to its respective purpose – in the case of § 28 AufenthG to the marriage. § 28 (2) AufenthG allows for turning the residence permit into a settlement permit (permanent residence permit) after 3 years if the family partnership continues, there is no interest in deportation, and sufficient knowledge of German can be demonstrated. The settlement permit has the considerable advantage that it can be issued for an indefinite period – so it is not revoked even if the marriage to the German citizen ends.

In Germany, a residence permit is always tied to the purpose for which it was issued. In the case of a German residence permit under § 28 AufenthG, the purpose of the residence permit is family reunification. If the family no longer “exists” in the legal sense, the purpose of the issued residence permit no longer applies, and it can be revoked or its extension rejected. However, the right to stay in Germany after a divorce is not automatically revoked. Instead, several safeguards are provided to protect against such an event. This is regulated in § 31 AufenthG.

The 3-year period is of particular practical relevance: If the marriage has existed under German law and on German territory for at least three years, the residence permit is extended by one year as a right of residence independent of the purpose of family reunification. Obtaining an extension is usually more complicated if the marriage lasts less than three years. In this case, the spouse must prove that particular circumstances justify continued residence in Germany, such as hardship or the care of joint children.

If a foreign parent has parental custody of a child who has a right of residence in Germany (e.g. a German child), this can justify an independent right of residence. The child’s interest in the continued care by the parent in Germany is also considered. In particular, cases of domestic violence or special ties to Germany worthy of protection are considered cases of hardship. Cases of hardship also apply if the person concerned can credibly demonstrate that a return to their country of origin would be unreasonable, for example, because there is a threat of persecution or other serious reasons against leaving the country.

There are special features for spouses of EU citizens, for whom special regulations under the Freedom of Movement Act/EU must be observed. There are also particularities in the case of suspected sham marriages, which can lead to a revocation of the residence permit and expulsion from Germany. Finally, there are particularities in the case of a settlement permit (permanent residence permit). If the foreign spouse has a settlement permit and not a simple residence permit, this is unlimited and not linked to the existence of the marriage, so in this case, a divorce has no further effect on the residence status of the foreigner.

There are special protection regulations for foreign spouses affected by domestic violence in Germany. If a marriage breaks down due to domestic violence, the affected partner can receive an independent right of residence despite the separation or divorce. This provision is intended to ensure that victims of domestic violence are not forced to remain in a violent or dangerous marriage simply to secure their residence status.

According to § 31 (2) AufenthG, the independent right of residence is granted in cases of particular hardship, whereby domestic violence is recognised as such. Police reports, medical certificates or court orders can provide proof of violence. It is essential that the victim documents the situation in detail and collects evidence of the violence suffered to fulfil the requirements for this particular regulation. German law provides a specific option for cases of domestic violence, known as the “protection against violence procedure”. This procedure is recommended for victims of domestic violence in addition to addressing residence-related issues.

Child custody is always a key issue in the event of a divorce. As a rule, parents receive joint custody of their children after a divorce in Germany. The nationality or even the residence status of one parent does not affect custody.

If one partner wishes to receive sole custody of the child – especially in cases where the couple in question were married – the court must be asked to make such a decision. The award of joint custody means that one parent can only relocate the child abroad with the permission of the other custodian. Should one partner attempt to do so, the German state can bring charges of international child abduction. In addition to custody, child access rights can be crucial and complex, and this should not be underestimated in the event of expulsion.

Our German family lawyers are also available to assist you with questions relating to rights of child access, custody and residence. Child custody legal issues are always a key issue in the event of a divorce. As a rule, parents receive joint custody of their children after a divorce in Germany. The nationality or even the residence status of one parent does not affect custody.

Regardless of whether a divorce is pending, if possible, it is generally advisable to fulfil an independent reason for a residence permit in Germany. If your residence permit is not based solely on your marriage to a German citizen or a foreigner living permanently in Germany but on an independent reason, you will have more security and independence.

An independent residence permit can be based on various legal grounds in Germany. The most common include:

• Employment: One of the safest ways to obtain an independent residence permit is to take up qualified employment. In many cases, a work permit can establish an independent residence permit. For example, if you find a job that matches your qualifications and apply for a corresponding visa or a residence permit for skilled workers, your right of residence is linked to your professional activity and no longer to your marriage.
• Studies or vocational training: If you start studying at a university or vocational training in Germany, you can apply for a residence permit for educational purposes. This allows you to remain in Germany during your training and thus build up your prospects independently of your marriage.
• Self-employment: Self-employment in Germany can also be a basis for an independent residence permit. If you set up a company or work as a freelancer in Germany, you can apply for a corresponding residence permit linked to your business activity.
• Humanitarian reasons: In some instances, humanitarian reasons such as illness, imminent danger in your home country or special integration into German society can form the basis for an independent residence permit. However, this requires a detailed legal examination and extensive evidence.

Our German immigration and residence lawyers will provide comprehensive advice on the legal options and their advantages and challenges. You may also consider applying for German citizenship. We will provide you with a clear overview of the relevant requirements and necessary evidence and support you in submitting applications and communicating with the relevant authorities.

Early legal advice is highly advisable for third-country citizens who wish to remain in Germany after a divorce. In such a situation, it is crucial to examine the individual circumstances and discuss possible options carefully.

Our German lawyers will help to take the necessary steps to apply for an extension of the residence permit or to examine alternative legal options – such as applying for a settlement permit or changing to another residence permit (e.g. for employees or the self-employed). Those affected should also be aware that the outcome of such a procedure depends heavily on the evidence provided and the individual circumstances. It is advisable to compile all relevant documents and evidence (e.g. proof of income, tenancy agreements, custody arrangements) early and seek comprehensive advice to increase the chances of successfully staying in Germany.