Svetlana and Valentin (names changed) met in Ukraine. Valentin, a Ukrainian of German descent who had once resettled in Germany as a late resettler and obtained German citizenship, went on holiday to Ukraine one summer, where he still had many friends and relatives. Mutual friends introduced him to Svetlana. It was love at first sight. Buoyed by this feeling of love, the young man could no longer imagine his life without the young woman. A long-distance relationship held no appeal for either of them, and after a short time and regular trips to see one another, they decided to tie their fates together and marry. In addition, since Valentin held German citizenship, marriage would considerably ease the young woman's move to Germany under family reunification with her German husband. Said and done! The young couple married, Svetlana moved to Germany to join Valentin, and received a residence permit.
The first years of married life were happy and carefree. Before long, however, as sometimes happens, problems arose in the couple's life... 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. Having finally fallen out, the young couple decided to separate.
Under Germany's immigration law (Aufenthaltsgesetz), spouses seeking to extend a residence permit or obtain a permanent one must appear before the Immigration Office (Ausländerbehörde) to prove and confirm that they are living together, provided the foreign spouse has not yet acquired an independent right of residence in Germany — that is, has not yet lived in the marriage on German territory for at least three years.
Many months after their separation, Valentin appeared at the Immigration Office on the scheduled day, solely to declare his wish to file for divorce. But on seeing his still-wife waiting in the corridor, he was left speechless. Svetlana had a noticeable — if small — belly. She was a fairly slender woman, so it did not even occur to Valentin that she might simply have gained weight. Everything was obvious — Svetlana was pregnant. The two had a serious conversation, and Svetlana confirmed her pregnancy. The father of the child was Valentin. Buoyed once again by this unexpected but happy news, Valentin rushed to beg Svetlana's forgiveness and call her back to him. They soon reconciled and began living together again. A few months later, the child was born. Valentin was listed as the father on all the documents.
Situations arise very often in which living together becomes unbearable, a husband grows ever more distant, and the prospect of divorce draws ever closer — and some women, in this position, gamble on a man's sense of duty by announcing a pregnancy. This does not, however, always spare a family from arguments and conflict. Whether this was precisely such a case is hard to judge. Even so, the child did nothing to bring peace and love back to the family. Right after the birth, the arguments resumed with even greater intensity. And one day, in a fit of hatred and hurt, Svetlana told her husband he was not the child's father at all. Valentin did not believe her at first, but later, as he began working out the timing of the pregnancy and recalling when they had separated, he became more and more convinced that he genuinely could not be the biological father. The young woman later claimed she had let her temper get the better of her and had spoken untruthfully out of spite. But by then it was already too late. Valentin, wanting to see neither Svetlana nor her child ever again, filed for divorce.
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. In his petition to the court, Valentin claimed that he and Svetlana had not been living together since February 2016.
Important on divorce
The grounds for divorce under German law are set out in §§ 1564–1568 of the German Civil Code (Bürgerliches Gesetzbuch — BGB).
Since divorce in Germany takes place exclusively through the courts, Svetlana turned to our law firm for help. Her situation was fairly dire: alone in a foreign country, with a small child to care for. She had no intention, however, of going back to her relatives in her home country. Even so, Svetlana's residence status in Germany was still tied to the existence of her marriage to Valentin, meaning that if the relationship broke down she would lose her family-based status. Given the time factor — specifically, three years of marriage — she had not yet had time to obtain a permanent residence permit. And, as is well known, one must be married for three years to obtain a permanent residence permit — meaning she would then have had to leave the country. The young woman, however, maintained that they had been living apart not since February 2016, but only since February 2017. This fact fundamentally changed the situation and gave her good prospects of success. But the lawyer faced a difficult task: it was necessary to prove our client was right, and to prevent the divorce with every available means, so that the statutory three years would have time to run and the young woman could obtain permission for permanent residence in the country.
To this end, the lawyer made the necessary inquiries to the relevant authorities. In addition, our client's elder daughter from a previous marriage was called as a witness — she had lived with the couple during the period when they were still together and could confirm that this had continued into late 2016. The daughter had already been living in Ukraine for a long time, but she wrote a letter, which the lawyer submitted to the court as evidence that Valentin's claim — that they had been living apart since February 2016 — did not reflect the truth.
At the hearing, all the evidence submitted by the lawyer undoubtedly played its part, since the judge questioned Valentin about this fact and about the duration of the separation with particular care and thoroughness. It also worked in our favor that the young man, for reasons unknown, kept contradicting himself, giving different information, and speaking in a very confused manner. In the end, he gave three different dates — even different months — for when the separation had begun. He was consequently unable to give the judge a coherent answer to the single most important question: from what point in time had the spouses stopped living together.
Our client, whom the lawyer had prepared for the hearing with the utmost care, was then heard. Unfortunately, however, Svetlana too was not immune to the human factor of nervousness, and at a certain point the lawyer noticed that she was volunteering more information than was advisable. The lawyer's alarm was triggered the moment he heard her say that no one but Valentin could possibly be the child's father, since she had had no intimate relations with any other man throughout that entire period. The lawyer had to urgently stop his client at that point, because giving testimony of that kind was becoming dangerous for her and could have had negative consequences later. The probability that the judge would order an expert paternity test was, after all, quite high — not least because that very question had been the reason for the couple's divorce in the first place. And since it had not been established who the child's father actually was, the circumstances above carried decisive weight for the young woman. The lawyer, however, intervened in the proceedings in time, and after a brief pause, our client tactfully corrected her statement.
The central issue of the hearing, however, remained the duration of the separation. Having weighed all the arguments presented by both sides, and taking into account all the circumstances and the evidence submitted, the judge ultimately dismissed the claimant's petition for divorce on the ground that the one-year period had not yet elapsed. The lawyer had thus achieved the goal he had set out to reach. Svetlana could now breathe easy, since within a few months the statutory three years would run, after which she would be entitled to apply to the Immigration Office for a permanent residence permit. In this story, the favorable outcome in the court proceedings was achieved solely thanks to the skill and experience of the lawyer representing our client's interests — he chose the right tactics and presented arguments the court found sufficiently weighty to rule in our client's favor.
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