German Residence Permit After Divorce From a German Citizen

Under Section 28 of the Residence Act (AufenthG), a residence permit must be granted to the foreign spouse of a German national if the German national’s habitual residence is in Germany, the marriage was validly contracted and is still in force, the means of support are secured, the spouses are over 18 years of age, and the joining spouse demonstrates basic knowledge of German, provided this is not unreasonably expected of them. For the issuance of a residence permit for spousal reunification, it is also crucial that the intention is to actually establish a marital partnership, i.e., that there is no sham marriage.

It should generally be noted that a residence permit is granted for a limited period. An extension of the residence permit is tied to its respective purpose. Section 28 (2) of the Residence Act provides for the possibility of converting the residence permit into a settlement permit after 3 years if the marital relationship continues, there is no interest in deportation, and sufficient knowledge of German can be demonstrated. The settlement permit offers the significant advantage that it is granted for an indefinite period – thus, it is generally not revoked even if the marriage to the German national ends.

A residence permit is always tied to the specific purpose for which it was issued. In the case of a residence permit under Section 28 of the Residence Act, the purpose of the permit is family reunification. If the family no longer exists in the legal sense, the purpose of the residence permit ceases to apply, and the permit may be revoked or its renewal denied. However, the right of residence does not necessarily end with the divorce; rather, the law provides for an independent right of residence in certain cases.

Section 31 of the Residence Act governs the extension of a residence permit following divorce or the death of a spouse.

Accordingly, in the event of a divorce, if the marriage lasted at least 3 years under German law and on German territory, the residence permit is extended by 1 year as a right of residence independent of the purpose of family reunification. If the marriage lasted less than 3 years, it is usually more difficult to obtain an extension. In such cases, the spouse must demonstrate that special circumstances exist that justify continued residence in Germany, such as exceptional hardship or the care of joint children. The child’s interest in continued care by the parent in Germany is also taken into account. Incidents of domestic violence (see below) or other special ties to Germany worthy of protection are also considered cases of hardship; including if the affected person can credibly demonstrate that a return to the country of origin would be unreasonable, for example because there is a threat of persecution there or other serious reasons against departure.

In Germany, there are special protective provisions for foreign spouses affected by domestic violence. If a marriage breaks down due to domestic violence, the affected partner may obtain 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 harmful or dangerous marriage solely to secure their residence status. Under Section 31 (2) of the Residence Act, an independent right of residence is granted in cases of particular hardship, with domestic violence being recognized as such. Evidence of the violence can be provided through police reports, medical certificates, or court orders. It is important that the victim documents the situation in detail and collects evidence of the violence suffered in order to meet the requirements for this special provision.

Under provisions of the EU Freedom of Movement Directive, a third-country national spouse of a German EU citizen retains their right of residence after divorce provided that one of the four preferential conditions set forth in Section 3 (4) of the Freedom of Movement Act/EU is met:

• The marriage lasted at least three years, of which at least one year was spent in Germany.
• Parental custody of the Union citizen’s children was transferred to the spouse who is not a Union citizen by agreement between the spouses or by court order.
• The right of residence is necessary to avoid particular hardship, especially because the spouse could not reasonably be expected to remain in the marriage due to the impairment of his or her legitimate interests.
• The spouse who is not an EU citizen has been granted the right to personal contact with the minor child only within the territory of Germany by agreement between the spouses or by court decision.

Following divorce from the EU spouse, the third-country national spouse must meet the requirements applicable to Union citizens under Section 2 (2) (1) through (3) or (5) Freedom of Movement Act/EU, for example through gainful employment or sufficient personal means of support. Merely invoking the status of the former EU partner is no longer possible.

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.