Not everyone is happy in family life. And when living together becomes unbearable, only one solution remains — divorce. Exactly this happened to our client Anastasia K. (name changed), a Ukrainian of German descent who had once resettled in Germany as a late resettler. As so often happens, the young woman went on holiday to Ukraine, where she still had many friends and relatives, and fell in love. Friends introduced her to Vitali at a party. Buoyed by this feeling of love, she could no longer imagine her life without the young man. A long-distance relationship held no appeal for her, and after a short time and regular trips to see one another, they decided to tie their fates together and marry. Since Anastasia wanted to stay in Germany, and nothing was holding Vitali in Ukraine, the question of where to live together was settled in Germany's favor. And since Vitali held Ukrainian citizenship, marriage would considerably ease his move to Germany. Said and done! The young couple married, Vitali moved to Germany to join Anastasia under the family reunification program, and received a residence permit under § 28 of the German Residence Act (Aufenthaltsgesetz).
Important on divorce
The young couple married, Vitali moved to Germany to join Anastasia under the family reunification program, and received a residence permit under § 28 AufenthG.
The first years of married life were happy and carefree. Even having to appear every three years before the Immigration Office (Ausländerbehörde) to prove and confirm they were living together did not cloud the life of the still-loving couple — something they duly did throughout their eight years of marriage. Before long, however, problems arose. Everyday life, worries, and work hung like a dark cloud over their family happiness. The situation grew more strained with every year, and frequent arguments became an inescapable part of their lives. Before long, Anastasia decided to draw a line under the relationship and to divorce Vitali.
The grounds for divorce under German law are set out in §§ 1564–1568 of the German Civil Code (Bürgerliches Gesetzbuch — BGB). Under § 1567 BGB, the main precondition for a divorce in Germany is that the spouses have been living apart for at least one year. This period of separation has come to be known as the "year of separation" (Trennungsjahr). This rule applies even where both spouses agree to the divorce. The purpose of this period is to give the spouses time to be certain of whether they truly want to divorce. Spouses are considered to be living apart where husband and wife no longer run a shared household and no longer maintain a marital relationship with one another.
Since divorce in Germany takes place exclusively through the courts, and, under § 78 of the German Code of Civil Procedure (ZPO), a divorce petition may only be filed with the assistance of a lawyer, Anastasia turned to our law firm. In September 2016, the lawyer representing Anastasia's interests filed the divorce petition with the Family Court (Familiengericht).
According to our client, she and her husband had not lived together since 2013. There should accordingly have been no problems with the divorce, on the basis that more than three years had already passed since 2013 during which they had not lived together. And nothing initially suggested the matter would run into difficulty. But since Vitali owed his residence status in Germany to Anastasia — his presence in the country rested solely on their marriage — he was firmly opposed to the divorce. For reasons unknown, he had, in all that time, never obtained a permanent residence permit, even though, after three years of marriage and residence in the country, he would have had a statutory right to one, provided he had sufficient income and German language skills at the B1 certificate level.
The Family Court set the divorce hearing (Scheidungstermin) for October 2016. The husband appeared at the October hearing, but not alone — Vitali too had decided to retain a lawyer. Apparently seeking to buy time and gather evidence, his lawyer filed a motion to postpone the hearing to a later date.
A surprise awaited us at the new hearing in November. The other side unexpectedly produced a document dated 17 May 2016. This document was a declaration (Erklärung) that our client had personally given and signed at the Immigration Office (Ausländerbehörde). In the declaration, Anastasia stated that she was living together with her husband, and gave a shared address. As already described, such declarations must be submitted every three years to prove continued cohabitation. Our lawyer's astonishment knew no bounds, above all because our client had insisted the whole time that she and her husband had not been living together since 2013. This created a situation in which, in the divorce petition, relying on our client's own account, we had stated that they had been living apart since 2013, while the document produced by the other side bore a signature date of May 2016. It followed that either she had given false information to the Immigration Office, or she had not been honest with us.
On the whole, it was hard to tell from this declaration exactly what the young woman had meant. It was handwritten, in very poor German. Reading it, it was entirely unclear whether they had in fact still been living together or not. At one point she had written that they lived together and shared their finances; elsewhere, the declaration spoke of living apart, because her sick mother sometimes stayed with her and needed care. On the whole, however, the impression left by the declaration favored the conclusion that they had, in fact, still been living together in May 2016.
Because our client always felt great anxiety, even fear, when speaking in public, particularly before government authorities, she tended to explain things very confusingly; she often got tangled up in her own words, lost her train of thought, and sometimes stammered. Her German, moreover, was at a very low level. She struggled to express her thoughts and her position clearly. This could naturally lead to her words being misunderstood by government staff — or, indeed, by anyone at all.
To clarify the situation, we submitted corresponding inquiries to the Central Register of Residents (Zentrales Melderegister — ZMR), in order to establish who had been registered where. This inquiry could serve as evidence before the court. The situation was complicated, however, by the fact that they had had several flats, between which they had moved. According to our client, she lived with the child in one flat, while her husband lived separately in another. There was, in addition, a third flat, in which our client's sick mother allegedly lived.
Beyond this, Anastasia was registered with the Job Center (Jobcenter), as she was receiving unemployment benefit (ALG II). Since marital status is always taken into account when granting benefits — the amount of the corresponding payments depending on it — she also had to inform the Jobcenter that she was no longer living together with her husband. We accordingly contacted the Jobcenter as well, to find out whether the fact of the separation had been officially recorded there. According to the Jobcenter, Anastasia and Vitali, on our client's own statement, had not been listed there as a cohabiting couple since as early as 2014. At this point matters took a serious turn. Had they, after making such a declaration, in fact continued to live together, this could have been classified as the criminal offense of fraud — and criminal liability threatened both sides, Anastasia as well as Vitali.
In light of these new circumstances, it was essential to present our client's position before the court to her best advantage. At the next hearing, having submitted all the necessary documents, our lawyer accordingly drew the court's attention to the following circumstances:
1. in her declaration at the Immigration Office in May 2016, our client had simply given incorrect information. Overwhelmed by anxiety and her poor command of German, she had simply misunderstood the questions and been unable to formulate her point clearly;
2. we pointed out that, in early August 2016, she had gone back to the Immigration Office in an attempt to explain that, because of her poor German, she had been misunderstood there, and that the statements she had given in May 2016 were incorrect. This was also confirmed by the Jobcenter, which had summoned her at the end of August 2016 to clarify the situation. At the Jobcenter, too, she cited her poor command of the language, on account of which she had, at the Immigration Office, even believed the questions concerned an earlier period of their relationship, when they had still been living together;
3. we provided the requested extract from the Central Register of Residents, which showed that Anastasia and Vitali had been living apart since the end of 2013;
4. according to the response we received from the Jobcenter to our inquiry, they had also been listed there as living apart since 2014.
Having heard the positions of both parties, assessed the situation, and examined the evidence submitted by our lawyer, the judge granted the divorce. The divorce proceedings between Anastasia and Vitali were thereby concluded.
Anastasia was overjoyed at such a swift conclusion to the proceedings. By that point, she had already been in a relationship with a new partner for some time. Even before the proceedings began, they had decided to marry, and having to wait the full year required under German law before her divorce could be granted would have been agonizing for them. Anastasia's new partner, one might say her future husband, is likewise a citizen of another country. We can only hope that, wiser from experience, she will this time pay closer attention to the statements she makes to the Immigration Office and to what she signs. Above all, though, she plans to improve her German, to avoid finding herself in such a situation again.
This outcome vividly illustrates how, in resolving family-law disputes — which are typically accompanied by emotional strain and difficulty in proving one set of circumstances or another — the assistance of a qualified lawyer can substantially simplify and speed up the process of achieving the desired result.
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