31 Aufenthalt - does time separated count towards the 3 years

Question

I keep reading that a marriage has to have existed in Germany for 3 years to be able to apply for the 1 year independent right to residence 31 Aufenthalt after divorce. But if married for 2 years, and separated for 1.. does this also qualify? It seems difficult to find information about the separation period, and whether residence permit is affected during that time or only when the actual divorce has been finalized.

Answer 1

Hi @Clae

Time separated does not count as part of the three years required for an independent right of residence. The independent right of residence is covered in paragraph 31 of the immigration law (Aufenthaltsgesetz). In section one of this you can see that the law refers to the marriage partnership (in German ‘eheliche Lebensgemeinschaft)) having existed for at least three years. It is not enough to be married for three years, you also must also have living as partners.

Here is the legal text in English via online translation:

https://***-gesetze--im--internet-de.translate.goog/aufenthg_2004/__31.html?_x_tr_sl=de&_x_tr_tl=en&_x_tr_hl=en&_x_tr_pto=wapp

The exception to this three-year requirement is detailed in section two of that law. In cases where it is unreasonable to expect a person to remain in a marital partnership, they can be given an independent right of residence after less than three years. This applies in particular in cases involving domestic violence.

Best,

Éanna