The law defines 'family' as actual family and marital relations, shared household management, cohabitation, willingness to provide help and protect each other. A formal, paper-only marriage devoid of true substance does not meet the requirements of the law on family protection and reunification of spouses. The legal status of foreign spouses of German citizens/foreign residents of Germany is regulated by § 31 Aufenthaltsgesetz. It was recently amended, and today I would like to explain the essence of the introduced innovations to our readers.
The breakdown of constitutionally protected family relations can deprive a foreign spouse of the right to reside in Germany. Usually, the foreigner's office becomes aware of the family breakdown. The registration office or the former spouse reports the foreigner's departure, change of registration and/or residence. The office conducts its own investigation of the circumstances, interviews the spouses, examines the possibility of reconciliation and restoration of the marital community. After divorce, the foreign spouse cannot count on a long residual validity of their residence permit. Due to the change in the prerequisites for residence, the office is authorized to prematurely withdraw the previously issued residence permit. The former foreign spouse is given some time to pack up, after which they must leave the country.
On the one hand, this is correct, because there are known sham 'visa marriages' for moving to Germany. On the other hand, the foreign spouse becomes dependent on their German half. Sometimes the German side openly abuses its position of power, making the life of the foreign wife (or husband) a living hell. To all complaints, such a citizen has only one answer: 'If you don't like it, I'll send you out of Germany within 24 hours.'
To deprive the German spouse of the opportunity for such abuses, German law provides for the so-called 'marital period'. After the marital period, § 31 Aufenthaltsgesetz strengthens the legal position of the foreign spouse and makes them more independent from the German resident. Recently, the marital cohabitation period was increased from two to three years. Thus, if the divorce occurs during the aforementioned dependent residence, then, as already mentioned, Germany must be left. Exceptions are made for widows of residents and in special circumstances.
According to § 31 Abs. 1 Nr. 1 Aufenthaltsgesetz, a foreign spouse with a three-year marital period, a widow(er), as well as a person with special circumstances, have the right to stay in the country for one year to determine their further life position. During this time, the foreigner must decide whether to return to their country of origin or stay in Germany. During this period, the foreigner may also receive social assistance. After that, the residence permit may be extended to those who no longer need financial social support from the state.
The law also provides for exceptions to these rules, for example for mothers raising young children. The situation is more difficult for elderly, obviously incapacitated persons. Let me give an example. 75-year-old German Karl Boge, after six years of married life, divorces his 66-year-old Ukrainian wife Olga. Olga is already of retirement age, and therefore is not obliged nor able to have earned income. In such a case, Olga can be considered not at fault for social dependency. She is not responsible for her husband's whims and his desire 'today I live with you, tomorrow I don't.'
For foreign spouses with insufficient cohabitation period, it is also possible to extend the residence permit in Germany in exceptional cases. The law states as follows: 'A particularly hard case occurs when the breakdown of the marital community leads to the need to return to the country of origin, which threatens the legitimate and protectable interests of the affected person, or when maintaining the marriage leads to disruption of substantial interests of the spouse … This particularly applies to cases of domestic and family violence against the spouse. The well-being of the foreign spouse's child living in the family can be considered worthy of protection.'
I will explain: loss of residence in Germany and return to the country of origin are not considered interests worthy of protection. Even if the foreigner has to return to an empty situation without a job, apartment, or social security. Germany cannot take care of the social well-being of foreign nationals. Exceptions may be made for citizens from Muslim countries where a divorced woman from the West may face massive pressure and public scorn.
Classic exceptional circumstances also include officially documented acts of violence by the spouse. A woman should not have to choose between enduring beatings from an aggressive spouse or being deported from the country. Psychological violence against a person in the form of insults, threats, humiliation can also play a role in deciding the future fate of the foreign spouse.
The law especially protects children. Administrative regulations emphasize the protectable interest of a minor child to maintain their environment in Germany. Therefore, in some cases, visa problems of women from broken marriages can be resolved by emphasizing the child's interests. An interesting case is when the child has their own residence permit and would like to exercise their own right of residence in Germany. After all, they did not divorce anyone. In some cases, I have managed to succeed with this argumentation.
The visa status of a foreign mother of a German child can be considered secure. Also, divorced foreign fathers of German children can demand a residence permit for the purpose of raising their separately living German child. Of course, other auxiliary constellations are also applicable. Special provisions apply to citizens or spouses of citizens of EU countries: in our case, the Baltic states, Moldovans with Romanian citizenship, and Russian Greeks with Greek citizenship. Finally, interested parties can appeal the decision of the foreigners' authority to terminate residence in Germany through the instances and in the competent courts.
Thomas PUE,
German lawyer.