Independent Right of Residence for Spouses ("Eheunabhängiges Aufenthaltsrecht")

Can I stay in Germany despite divorce?

After the end of a relationship or a partner's death, there are often many issues to clarify. If you are not from Germany, you usually have to apply for a new residence permit, particularly if you have come to Germany via family reunification because your partner was already living here. If you separate or your spouse passes away, you may lose your right of residence. However, under certain conditions, you can remain in Germany. These conditions have been regulated within the "Independent right of residence for spouses" ("Eheunabhängiges Aufenthaltsrecht") in §31 Residence Act.

What do I have to know?

What is the Independent right of residence for spouses ("Eheunabhängiges Aufenthaltsrecht")?

If you come from a country outside the European Union, you need a residence permit to stay in Germany, and you can only obtain a residence permit on specific grounds. For example, marriage or a registered civil partnership with a German citizen or someone holding a valid residence permit in Germany. If you separate from the person in question, the reason for your residence permit no longer applies. The same is the case if your partner dies. In both cases, in principle, you would have to leave Germany. But: The "Independent right of residence for spouses" gives you the right to continue to stay in Germany. That means you can obtain your independent residence permit according to §31 Residence Act and remain in Germany for one year. During this year, you will not have to be able to support yourself financially and can receive social assistance or unemployment benefit II. And your stay can be extended after one year. You can learn about the requirements you have to meet in the section "Can I extend my independent right of residence?".

Can I apply for the Independent right of residence for spouses?

You can obtain the Independent right of residence for spouses if you meet all the following conditions:

  • You came to Germany via family reunification to live with your spouse or registered partner.
  • Family reunification must be the current reason for your stay in Germany. That is the case if you have a residence permit according to Sections 28, 29 or 30 of the Residence Act. Please note: If you came to Germany via family reunification but obtained a different residence permit later, you are not entitled to the Independent right of residence for spouses.
  • You and your spouse or registered partner are separating. Or your partner has passed away.
  • Before you separate, you must have been married in Germany for at least three years. The exact time limit also applies to registered civil partnerships. You can find out how the authorities calculate these three years in the section "How is the three-year period calculated?".

Important: If your partner passes away, you do not have to meet this requirement.

  • You and your ex-partner have a valid residence permit in Germany. The residence permit must be valid throughout the period you lived together as a married couple or registered civil partners in Germany. Your ex-partner's residence permit must also allow them to stay in Germany long-term, for instance, a permanent residence permit.

Important: The three-year period does not apply to Turkish nationals. After just two years of marriage in Germany, you can apply for an Independent right of residence for spouses. The legal basis for such an exception is the Association Agreement between the European Community and Turkey in 1980. If this regulation applies to you, it is best to seek help from a lawyer or counselling centre. You can find a counselling centre or lawyer in the section "Where can I find advice and support?".

Why should I apply for the Independent right of residence for spouses as soon as possible?

A separation or death means that the reason for your stay (your marriage or civil partnership) no longer exists. The authorities, therefore, no longer have any reason to allow you to stay in Germany. As a result, your residence permit may not be valid anymore, so you may have to leave Germany before your current residence permit expires. However, you can appeal this decision. It is best to seek help from a lawyer. Keep in mind that you should apply for your independent residence permit as quickly as possible so that you do not have to leave Germany. You can remain in Germany until your application is decided.

Please note: You do not have to be in Germany for divorce proceedings. Therefore, the Immigration Office can shorten the validity of your residence permit. If this is the case, you can file a complaint against it. It is best to seek help from a lawyer or a counselling centre. You can find counselling centres in the section "Where can I find advice and support?".

How is the three-year period calculated?

According to the law, you must have been married for at least three years to obtain the Independent right of residence for spouses. The same also applies to registered civil partnerships, meaning they must have been in the registered partnership for at least three years. However, only the years you spent in Germany as a married couple or registered civil partner count. So, the years you may have spent together as a married couple or partners in your home country do not count.

The Immigration Office calculates the number of years you have been in Germany as a married couple (or registered civil partners) from the day you received your residence permit. They count the duration of your marriage/partnership up to your official separation date, i.e. the day you separate from your partner. See the section "When will I be considered separated?" to learn when you will be officially considered separated.

Important: The day of your divorce is not the day of separation. Before getting a divorce in Germany, you usually have to be separated for a year. You can read more about divorce procedures in our chapter "Divorce".

When am I considered separated?

For the authorities, a marriage (or partnership) is considered to have permanently ended when both spouses/partners agree that the marriage or civil partnership has ended. That is the case, for example, if you both file an application for divorce with the family court. You can read how to do so in our "Divorce" chapter. Important: If you reconcile in the meantime and separate again after about three months, you will still be considered separated by the authorities.

 If your spouse disagrees with the separation, you will be considered separated when you no longer live together. That is often difficult to prove, so authorities accept specific signs as marks of a final breakup. For example, you or your ex-partner moving out of the shared flat signifies separation. If you are moving out, you should register your new address quickly and inform the Immigration Office. You can read how to find a new flat in the chapter "Searching for a flat".

Since moving is often a challenge, you can stay in the shared flat. However, to be considered separated, you should divide the flat into separate areas for you and your ex-partner. That means you decide which rooms each of you will occupy. Furthermore, you should not shop or do laundry together - this shows the authorities that your life together is over. It is best to write down your agreement and have your ex-partner sign it. You can submit the agreement to the Immigration Office as proof that you have separated.

Being separated and living together can often lead to problems. If living with your ex-partner is bothering you, you can get help. On the Women Against Violence e.V. website, you can search for counselling centres that offer counselling in your language nearby. If you are a man, you can search for a counselling centre in your area online using the map provided by the men's counselling network. To do so, select the keyword "Gewalt" or "Familie& Partnerschaft& Trennung" in the "Alle Beratungsfelder" box. In the "Ort oder PLZ" box, enter the name of your place of residence or Postcode. Then, you will be shown counselling centres in your area on the map with blue markers. If you click on the marker, you can see the address, telephone number, website and opening hours of the respective counselling centre.

Do I have to inform the Immigration Office when my marriage ends?

In principle, you are not obliged to report your separation to the Immigration Office. However, not communicating the separation or divorce can have a negative impact if the immigration authorities find out that you separated earlier than you told the authorities. Furthermore, you are obliged to notify the Immigration Office of essential developments, such as moving house. Otherwise, you may no longer receive important letters from the Immigration Office.

Important: Some Immigration Offices stipulate that you must notify them if you separate. They do so with a so-called "Auflage". You will usually receive this requirement together with your residence permit. If you are unsure whether you have received such a condition, it is best to ask a counselling centre. In the section "Where can I find help?" you can find a counselling centre nearby.

Can I obtain the Independent right of residence for spouses if I haven't lived with my spouse for three years?

As a rule, you must have been married in Germany for three years to obtain the Independent right of residence for spouses. But there are exceptions, mainly when there are particular hardships. The following cases are examples of particular hardships:

  • If you return to your home country, your life, freedom and/or health are at risk. The same also applies to your children if they have to come with you.
  • There is a danger, for example, that you cannot take care of yourself in your home country and your family would not support you. You must prove that the risk affects you personally and anywhere in your home country. Make sure you seek support from a counselling centre. In the "Where can I find advice and support?" section, you will find counselling centres nearby.
  • If your partner subjects you or your children to violence. Domestic violence is a criminal offence, and you should report it to the police. If you give the Immigration Office domestic violence as the reason for applying for an Independent right of residence for spouses, you usually have to prove the crime(s). Possible evidence is, for example, a medical certificate about your injuries, police reports or statements from friends, acquaintances or counselling centres about acts of violence by your ex-partner
  • If you were under 18 when you got married. In Germany, couples are only allowed to marry when both are of legal age, i.e. over 18 years old.
  • If you have been forced to marry against your will.

Even if your partner dies, you can remain in Germany without observing the mentioned three-year period.

Important: If you or your children experience violence at home, you can call the free helpline around the clock. The phone number is 0800-116016. All employees there are women. You can talk to them about your problems, usually in your own language. You can also use a Chat option if you can't or don't want to talk on the phone. Everything you discuss with the counsellors is confidential. You can find more support options in our chapter "Domestic violence".

My child lives in Germany. Does this affect my right of residence?

Taking care of your child could be challenging if you live far away. Therefore, as a mother or father, you can usually stay in Germany if your child is under 18 and has a valid residence permit in Germany or German citizenship. In addition, you must have sole custody or share custody with your ex-partner, meaning that you take care of your child alone or together. You can learn more about child custody in our "Child custody" chapter.

When deciding whether you can stay in Germany because of your child, the focus is on your child's well-being. The authorities check whether you can only look after your child in Germany and what your relationship with your child has been like so far. It is, therefore, a so-called "individual case evaluation". That means there is no guarantee that you will receive a residence permit.

Where do I apply for Independent right of residence for spouses?

You can apply for the Independent right of residence for spouses at the Immigration Office. To do so, you first need to inform the authorities that you have separated - so you need to make an appointment with the Immigration Office. Before making an appointment, it is best to seek advice. You can find counselling centres in the section "Where can I find advice and support?". The counselling centre staff can help you prepare all the necessary documents for your appointment.

If your ex-partner or other people inform the Immigration Office that you have separated, you will usually receive a letter from the Immigration Office. In this letter, the Immigration Office asks whether you are still married. Alternatively, the Immigration Office may send you a letter and inform you that your current residence permit is no longer valid or that its validity period will be shortened.

In your reply, you should state that you are applying for the Independent right of residence for spouses and explain why you are eligible for such a resident permit. You can read about the possible reasons for an independent residence permit in the section "Does the Independent right of residence for spouses apply to me?" and in the section "Can I get the Independent right of residence for spouses without complying with the required three-year period?". You can also send Immigration Office copies of documents supporting your statements, for instance, a copy of your divorce application, registration confirmation, or police reports.

Important: You must reply to this letter. Be sure to keep to the specified deadline. It is essential that you seek counselling before answering. You can find a counselling centre nearby in the section "Where can I find advice and support?".

What do I need to apply for the Independent right of residence for spouses?

You can obtain the Independent right of residence for spouses from the Immigration Office responsible for you. It is best to ask them directly what you must submit and when. You have to pay for the application. You can ask the immigration office directly about the fees.

  • Most Immigration Offices require these documents:
  • A copy of your current residence permit
  • A biometric passport photo
  • Any papers that document your separation. That can be a copy of your divorce application or registration confirmation.
  • If you want to claim particular hardship, you have to prove it, for instance, with police reports or certificates in the case of domestic violence. It is best to get help from a counselling centre. In the section "Where can I find advice and support?" you will find counselling centres in your area.
  • If your wife or husband is deceased, you must bring a copy of the death certificate with you. That is an official document confirming the death of your spouse. You can obtain it from the registry office responsible for you. Check out the website of your city or municipality to find the registry office responsible for you. You can also look it up on  Google. Enter your place of residence and the term "Standesamt".
Can I extend my independent right of residence?

With the Independent right of residence for spouses, you can stay in Germany for one year. During this year, you do not have to earn your living independently, meaning you can receive social assistance or unemployment benefit II.

At the end of the year, you can extend your residence permit. Your residence permit can be renewed twice for two years each. You can therefore remain in Germany for up to four years. However, make sure you apply for an extension in due time and before your residence permit expires. Because for the extension of your residence permit, you may have to prove that you can look after yourself and, if necessary, your children financially. So you have to earn an income. The amount of money you have to make and the types of state aid you can continue to receive depends on the number of people you care for. You may also have to meet other conditions; for example, you may have to have health insurance coverage. Therefore, ask the Immigration Office responsible for you in due time about the exact requirements for an extension.

I can't get the Independent right of residence for spouses. Is there any other option?

If you are unable to obtain an Independent right of residence for spouses, you can try the following options to remain in Germany:

  • Are you doing vocational training, studying or working? Or do you want to start an apprenticeship, study or work in Germany? Then you can obtain a residence permit as a trainee, student or professional under certain conditions. You can learn more about the requirements in our "National Visa" chapter.
  • Do you have a child who has German citizenship and hold joint or sole custody? Then maybe you can stay in Germany to take care of your child. You can find out more in the section "My child lives in Germany. Does this affect my right of residence?".
  • Are you from a country at war or under the threat of persecution in your country? Then you may be entitled to asylum. Make sure you seek advice to learn more about your options. You can find helpful information and counselling centres in our "Asylum Procedure" chapter.

Important: You must seek advice and learn more about your options. You can find counselling centres in the section "Where can I find advice and support?".

Where can I find advice and support?

When applying for an independent right of residence for spouses, you must seek case-specific counselling. You can find a counselling centre, e.g. on the Pro Asyl website or the Refugee Council website. You can also find help at a Migration Counselling Centre in your area. You can search for lawyers, for instance, on:

Important

If you or your children face violence at home, call the free helpline 24 hours a day. The phone number is 0800-116016. All their staff are women and you can talk to them about your problems (usually in your own language). There's also a Chat option if you can't or don't want to talk on the phone. Everything discussed remains confidential. You can find more support offers in the chapter "Domestic violence".

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