Residence after Divorce
Here you can find out everything about your residency options if you divorce your spouse in Germany.
Here you learn ...
whether you are allowed to continue to stay in Germany after a divorce
whether the spouse visa automatically expires after a divorce
how to apply for divorce residence permit at the immigration office
when you can get a settlement permit after a divorce
Author
Lawyer
Reading Time
9 Min.
Release Date
21.02.2025
Table of Content
1. Visa situation after a divorce
2. Requirement Divorce Visa
3. Application for divorce visa
4. Child's right of residence after divorce
5. Residence permit after divorce
6. FAQ Divorce Visa
1. Visa situation after a divorce
The spouse visa enables foreign spouses to live in Germany as part of family reunification with their German spouse or foreign spouse living in Germany. A key principle of this visa is the continued existence of the marriage. However, if a separation or divorce occurs , the visa does not automatically become invalid, but can be revoked or withdrawn. In addition, an extension is not possible without an existing marriage . This poses great challenges for many foreign spouses, as their stay in Germany is often tied to the continued existence of the marriage.
However, there is a solution to this problem: under certain conditions, a foreign spouse can stay in Germany even after the divorce . The so-called independent right of residence according to Section 31 of the Residence Act allows those affected to apply for their own visa. In this article, you will learn which conditions must be met for this right of residence and which steps are necessary in order to be able to stay in Germany even after a divorce.
2. Voraussetzung Scheidungsvisum
Nach § 31 AufenthG wird die Aufenthaltserlaubnis des Ehegatten nach Auflösung der ehelichen Lebensgemeinschaft als eigenständiges Aufenthaltsrecht für die Dauer eines Jahres verlängert, sofern die eheliche Lebensgemeinschaft mindestens drei Jahre rechtmäßig im Bundesgebiet bestanden hat und der ausländische Ehepartner während dieser Zeit im Besitz eines Aufenthaltstitels war. Das Scheidungsvisum setzt demnach also voraus, dass die Ehegatten mindestens drei Jahre in Deutschland verheiratet waren und der Ehepartner in diesem Zeitraum über einen Aufenthaltstitel verfügte.
What happens if I have not been married in Germany for three years?
The necessary time in which you must have been married can, however, be reduced under certain circumstances. This applies, for example, if your spouse has died (in which case no prior marriage period is required) or if your spouse has a Blue Card (in which case a marriage in another EU country can be credited for up to one year, Section 31 Paragraph 1a of the Residence Act). Due to the so-called “standstill clause” , Turkish nationals also only have to prove that they have been married for two years. What is particularly relevant in practice is that the three-year marriage requirement can be waived if there is “ particular hardship ” (Section 31 Paragraph 2 of the Residence Act).
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What is “particular hardship”?
According to the administrative instructions in Berlin, particular hardship exists in particular if
if the marriage is invalid or has been annulled under German law due to the spouse being a minor at the time of the marriage, or
if the spouse is threatened with a significant impairment of his or her legitimate interests due to the obligation to return resulting from the dissolution of the marital partnership, or
if it is unreasonable for the spouse to continue to maintain the marital relationship due to the impairment of his or her legitimate interests.
This is particularly hard if you cannot be expected to continue to be married. This is especially likely if you (or your child) have been the victim of domestic violence . If you or your child are abused in the marriage ( psychologically or physically ), you can separate and then apply for a divorce visa without having been married in Germany for three years beforehand.
3. Application for divorce visa
If you are divorced from your spouse or are still in the process of getting a divorce and meet the above requirements, you can apply for a divorce visa at the immigration office responsible for you. The application process is basically no different from the application process for other residence permits. In most cases, you only have to upload the relevant documents to the authority or send the documents by email or contact form. In principle, you must submit official documents such as the relevant court judgment (or court order) to prove the divorce.
4. Child's right of residence after divorce
The question of how the right of residence is structured after the divorce is particularly relevant in practice if the divorced spouse has a child to care for . In principle, in this case, the security of livelihood must be fully examined, so the (possibly non-working) spouse must provide for himself and his child after the divorce in order to obtain a right of residence (general security of livelihood).
However, according to the administrative instructions in Berlin (VAB), caring for children is an exception to the rule when it comes to securing a livelihood. Such an exception applies if the family cannot reasonably be expected to live abroad. In such a case, the lack of security of livelihood does not prevent the extension of the residence permit.
5. Residence permit after divorce
After a divorce, foreigners can be granted not only a regular temporary residence permit, but even a settlement permit . If the spouse's livelihood is secured after the dissolution of the marital partnership through maintenance payments from the foreigner's own resources and the foreigner has a settlement permit or a permanent residence permit - EU, the spouse must also be granted a settlement permit.
Maintenance is guaranteed if the foreigner with primary entitlement fulfills his or her legal maintenance obligation. The prerequisite for this is that an existing maintenance obligation is actually met from the foreigner with primary entitlement's own resources. A maintenance obligation that merely exists but cannot be enforced or one that is not covered by the spouse with primary entitlement's own resources is not sufficient. Additional resources of the spouse concerned, in particular a sustainable income of their own, can be taken into account when assessing maintenance.
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6. FAQ Divorce Visa
What happens to my visa after a divorce?
After a divorce, the spouse visa initially remains valid. However, it can be revoked or not renewed because it is tied to the existence of the marriage.
Can I stay in Germany after the divorce?
Yes, under certain conditions an independent right of residence can be applied for in accordance with Section 31 of the Residence Act.
What requirements do I have to fulfill to have an independent right of residence after the divorce?
The marital partnership must have existed legally in Germany for at least three years and the spouse must have had a residence permit during this time.
Are there any exceptions to the three-year marriage period?
Yes, the time can be reduced, for example if the spouse has died or if there are special hardships (Section 31 Paragraph 2 of the Residence Act).
What is considered “particular hardship” for a right of residence after divorce?
A particular hardship exists if continuing the marriage is unreasonable, for example in the case of domestic violence or if the obligation to return entails significant disadvantages.
Can I get a settlement permit after the divorce?
Yes, if the livelihood is secured through one's own resources or maintenance payments and certain other requirements are met.
