German law and EU law have high bureaucratic hurdles for an EU citizen to marry a non-EU citizen (binational marriage). The following is an overview of the requirements for marriage, how the right of residence is regulated and what you have to consider in the event of a divorce.
For a binational marriage, a visa and a certificate of marital status are required. Marriage must be permitted in Germany and in the spouse’s home country. Both must be eligible for marriage. This means that they must be of legal age and there must be no grounds for preventing marriage. A clear reason for preventing marriage is, for example, that a spouse is already married. In Germany, the registry office examines the eligibility for marriage. The non-EU citizen must present a certificate of marital status. This is valid for up to six months and is issued either by the consulate or the home authority.
Because certain countries, e.g. France or Belgium, do not even have such a certificate, many wives spend additional time: In cases in which no certificate can be presented, an exemption procedure must be initiated. This can drag on for several months.
Are there any special features in same-sex marriages?
Since October 1st, 2017, same-sex couples have been allowed to get married in Germany. Up to this point in time, a same-sex civil partnership was treated as equivalent to marriage. The law attaches the same conditions to a binational same-sex marriage or civil partnership as to a heterogeneous marriage. It should be noted in this case that marriage is not recognized in most other countries.
How is the right of residence regulated?
Foreign citizens need a residence permit to stay in Germany. Such a residence permit is issued in accordance with the Residence Act (AufenthG). This document can have different names:
- Visa for entry
- Residence permit
- Permanent residence permit
- Permit for permanent residence in the EU
A distinction must be made between the right of residence before and after the marriage. The engagement that intends or contemplates marriage is not enough to get a residence permit. If the future spouse (foreign worker, family member or student) is not already in Germany with a residence permit, he must obtain a visa. The German diplomatic mission in the respective home country issues the required visa.
The registration of a binational marriage requires numerous documents and records. It is therefore very complex and takes a long time to complete. Careful coordination of entry for marriage and the date of the marriage is important. The above-mentioned residence permit must be valid for the entire planning period if the future spouse is to or has to stay in Germany during the preparatory phase.
With the marriage to a German citizen, the EU foreigner is entitled to a residence permit. This is valid for three years. If the marriage is still going on after these three years, the foreign spouse can apply for a permanent residence permit.
Under what conditions can naturalization be applied for?
With binational marriage, the foreign spouse does not automatically acquire German citizenship. But it makes the application easier. After three years of residence or two years of marriage, non-German spouses can apply for naturalization. It should be noted that this is not a spontaneous matter. In addition to proof of mastery of the German language, a naturalization test must be completed.
What impermissibilities are there in a binational marriage?
In the case of binational marriages, the suspicion quickly arises that it may be a marriage of convenience. It is a sham marriage if the marriage does not serve to form a living community. Rather, the sole purpose of marriage is to give the partner a legal advantage. An indication of this is, for example, that the spouses never met before the marriage. A connection with such motifs is not permitted in Germany. The marriage must be annulled. For the foreign spouse, this means that they will lose their residence permit.
According to § 95 Abs. 2 Nr. 2 AufenthG, incorrect or incomplete information is punishable if it is used to obtain legal residence in Germany. A sentence of up to three years imprisonment or a fine is threatened. Incorrect information in connection with a marriage of convenience is subject to a limitation period of five years (Section 78 Paragraph 3 Sentence 4 StGB).
What should be considered in the event of a divorce?
In the event of a divorce, it must be clarified which court has jurisdiction. According to EU law, the court of the last common place of residence is responsible. If the couple moved from Germany to France, for example, during the marriage and would like to get a divorce there, the French regulations must be observed. In this case, German law does not apply.