Germany became one of the first countries, not only in Europe but in the world, when a law entered into force on 1 August 2001 allowing one lesbian to "marry" another lesbian, and one gay man to "marry" another gay man. Among such "marriages" are also same-sex marriages entered into between nationals of different countries. Nationals of Russia and the former USSR are no exception here either. Attitudes toward such unions can vary. Without touching on the moral and ethical side of the question, in this article we would like to focus on the legal and procedural aspects of such a partnership.
Like heterosexual couples, same-sex couples also formalize their relationship at the registry office, but officially such a "registered union" is not called a marriage and, from the standpoint of Germany's Basic Law, which places marriage under special protection, is not treated as one. For instance, unlike ordinary families, same-sex partners are not entitled to the tax benefits that substantially ease a family's budget. In addition, their options for adopting children are limited. If one of the same-sex partners already has a child, the other can formally adopt that child. But if the couple has no children of their own, they cannot become adoptive parents of a child together.
Special Cases of Reunification
In certain cases (serious illness, childcare), family reunification is possible even without full compliance with the formal requirements — a well-crafted legal justification plays the decisive role.
In every other respect, same-sex partners have almost the same rights and obligations as a traditional husband and wife. They are required to care for one another, take on responsibility for each other in the event of illness or job loss, have the same inheritance rights as other married people, receive a "family" supplement where provided for under a pay scale, and are treated equally when it comes to pension entitlements.
"One man's meat is another man's poison" — and vice versa. That's roughly how our clients, a German woman named Katharina and a Russian woman named Larisa (names changed), put it. The two had been in a close relationship for several months and had formalized it by registering a civil partnership in Denmark. It all began when Larisa, who had been drawn to life in democratic, freedom-loving Europe since childhood, came to Germany on a six-month Schengen visa. Before that, she had been in a somewhat depressed state, disillusioned both with the harsh realities of life in Russia and with a string of unsuccessful relationships with men. She was searching for herself and wanted to try something new. She met Katharina online, who preferred close relationships with women. After getting to know each other from a distance, the two women's lives took on new colors, and their relationship developed rapidly. Larisa soon came to visit her new girlfriend — and decided to stay...
The two women knew perfectly well that same-sex marriage is allowed in Germany. On the advice of Katharina's friends, they wasted no time and headed off to Denmark for a few days, where they registered a civil partnership without any trouble. The newly-minted "spouses" were confident at the time that the official status of their relationship would allow Larisa to obtain a long-term residence permit and stay living in Germany. And that would indeed have been the case — almost...
Under the established procedure, Larisa, a Russian national, needed to return home to Moscow and apply to the German Embassy there for a national visa for the purpose of family reunification with a German national. Only then could she enter Germany under her new status and obtain a residence permit under § 28 of the act governing the basic requirements for the stay, employment, and integration of foreign nationals in Germany (Aufenthaltsgesetz) — family reunification. All of this frightened the newly-minted "newlyweds" a great deal. Knowing full well how Russians traditionally view people with a non-traditional orientation, they feared harassment and prejudice from the staff of the German embassy in Moscow toward their rather unconventional situation. Larisa kept putting off dealing with the issue, enjoying her newfound happiness. There's no telling how long this would have gone on, but Larisa's six-month visa expired, and she turned to our law firm for the professional help she genuinely needed.
After listening to our clients' arguments, the lawyer immediately tried to convince them that, in Larisa's case, it was necessary to return home to obtain the German national visa. He explained in detail to Larisa the procedure for obtaining a residence permit for family reunification, and also warned her about the legal consequences, since she was already staying in Germany unlawfully at that point. Despite the lawyer's compelling arguments, Larisa categorically refused to fly to Moscow and insisted that it was worth trying to obtain a residence permit while bypassing the established procedure in Germany. Having agreed that our clients' situation really was rather unusual, we did everything in our power to help them resolve the problem. Acting on their behalf, we filed an application with the immigration authority (Ausländerbehörde) for the Russian national to obtain a residence permit in Germany for family reunification. We also accompanied the couple to their in-person interview at the immigration authority and explained to the official, in detail, the reasons why Larisa had been forced to act as she did. Alas... "Dura lex sed lex" (the law is harsh, but it is the law) — as we had suspected, Larisa was unfortunately unable to stay in Germany by bypassing the procedure set out by law.
Nevertheless, our lawyer did everything possible to ensure that Larisa's visit to Moscow went smoothly and that her long-awaited visa was issued without delay.
First, to avoid inconsistencies in Larisa's immigration file and confusion further down the line, the previously filed application for a residence permit in Germany was withdrawn.
Second, at our request, an official at the immigration authority contacted colleagues at the German Embassy in Moscow. He explained the serious concerns of the partners who had approached the immigration authority, secured the embassy staff's support, and obtained their assurance that the case would be reviewed impartially and without unnecessary delay. It should be noted here that, in practice, obtaining the immigration authority's preliminary approval on the question of issuing a visa to a foreign national amounts to almost a full guarantee of success.
Third, the lawyer justified the reason why Larisa had not left Germany within the period allowed by her visa. As a result, she was issued a permit allowing her to leave the country without any issues with the German authorities.
Finally, the lawyer helped Larisa prepare and put together a comprehensive set of documents required to obtain the German national visa. The lawyer also gave the client detailed advice on everything related to the embassy interview.
So, come what may, Larisa headed off to Moscow, where the fate of our client's documents was soon to be decided. The positive outcome was not long in coming. Just as we had expected, everything went off "without a hitch," and within the promised three weeks Larisa sent us a photo of her passport with the national visa glued into it. Her joy knew no bounds — she flew back to Germany almost the very same day, where, with our help, she soon obtained a residence permit to reunite with her civil partner. The grounds for obtaining this kind of residence permit are the same as those for a standard married couple and are set out in § 28 of the Aufenthaltsgesetz.
There are as many different life situations as there are people, and there is no universal "recipe for happiness" here. We live in a modern world where everyone chooses for themselves whom to be with and where they feel most comfortable. A lawyer's task is to advise the client competently and clearly explain all the options available under the law. The right advice and professional help can sometimes play a decisive role, especially when it comes to complex and unusual legal problems. In our work, we are used to examining every nuance thoroughly and seeking out every path available under the law, which allows our clients to successfully achieve their goals.
All rights reserved. Copying or republishing this article requires a link to the original source.
