PROTECTION MARRIAGE - Guide to getting married

-> The way to marry
-> Residence permit status
-> Investigations
-> M
arriage contract and conjugal obligations
-> Fatherhood

With today's asylum politics, a refugee can, at best, attain the right to stay by chance. Considering migration politics, in which perminent residence is only possible on the grounds of marriage, more people are asking themselves the question; whether they should marry or commit to a same-sex life-partnership, out of love or out of the possible threat of having to leave the country. The motives for this vary. One may consider marrying in order to keep their loved ones in Germany. The other may consider it in order to protect people against the political threat of deportation. What are the considerations at hand?

Without a doubt, marrying is a legitimate form of securing one's right of residence. For whatever reason people marry or register for a life-partnership, is purely a private affair which does not concern anybody else, and least of all the state. Unfortunately these principles are not adhered to. Therefore every marriage should be carefully planned and well considered. When marrying for love, it should be carefully considered that an on going right to stay can put an enormous strain on the relationship. The marriage produces dependencies that are not necessarily one sided – the German spouse or partner will always have the upper hand. Possibly, for one of the partners, the marriage is just a formality, although the other partner expects a traditional marriage. These questions and problems should be solved beforehand, so that if the couple does initially marry for love, that love is not destroyed by misunderstandings, arguments or guilt feelings. That can often happen, especially if the borders are not clearly defined.

The following suggestions we are providing here should help with a decision, but should not replace informing yourself about the laws that are applicable in your local area (registrar's office, foreigner office, social office, notary) which can vary a lot. Firstly, some worthwhile points; according to current law, the marriage must last a minimum of three years – two years together and one year separated. Usually in these three years it is not necessary to go to a government office on a regular basis. It is clear that marriage can have consequences that should be considered beforehand. These concerns can be the desire to have a child, a longer stay abroad or moving to another city. Any of these variations on top of the marriage itself, can make it more difficult.

Mutual trust with one another is absolutey necessary. For both, the marriage has significant consequences, therefore both must be able to trust each other. For one partner, the right to stay in the country depends on the marriage. For the other, the marriage can be concerned with, financial aspects, for example; unemployment benefits, social aid, student loans or one's tax bracker. There can also be consequences concerning the place where both are registered to live, for example; if one partner fails to keep up with his/her financial commitments, possible seizure of goods can occur. That should not happen – but if it does one needs to talk about it.

Essentially, it is important to have friends that can help with problems. The marriage should not be treated as something private, but on the other hand it is dangerous to treat this form of marriage too openly. Denounciation or the spreading of rumours is in principle the only possibility for the foreigner's office to uncover a protection marriage.

The way to marry                    <- top
Depending on the nationality of the foreign partner, and what documents are needed, the way to marry can be difficult. Therefore the first step is to find out at the Standesamt (Registrar's office) which documents are neccessary. There are various Standesamt responsible for certain local areas, so if the couple live in different areas, they frequently have the choice between two. Often, the procedure of marrying is easier at one office than it is at the other. The decisions of the registrar can be arbitrary and the laws can vary from state to state. Under certain circumstances, it can even be recommended to register the place of residence in a different area in order to change to a better Standesamt. The registration of a life-partnership is regulated differently in each state, but in most states, the Standesamt is responsible, in others the Notar (notary) holds that responsibility.

Usually, the Standesamt, will issue a document declaring the exact papers that must be produced, and those papers need to be authenticated by the German Embassy in the country of origin. Normally that list includes a birth certificate, Ehefähigkeitszeugnis (a testimony stating that you are single eg; Affidavit of free status), passport or citizenship identification card and additional documents according to the country of origin. These papers must be from the country of origin. In some countries, the documents must be presented to the German Embassy for the purpose of authentication. By law, according to § 13 Konsulargesetz (Consular Act), this legalization is a formality to prove the document's authenticity. Since 2001/2002, in many countries, this formality has become redundant because the legitimacy of the documents are questionable. This is true for most of the West African countries, as well as Vietnam. In these cases, the embassy will only authorise the papers after an extensive investigation of the content. With the use of a lawyer, the family affairs of the partner are looked into. The lawyer can earn a lot of money from this, and is therefore generally not interested in finishing the job fast. This process can take so long in some countries, that a marriage in Germany is almost impossible. If the Heimatstandesamt (Registrar of the partner's country of origin), insists on an examination of the documentation, it will be undertaken in cooperation with the authorities in Germany. It is therefore especially important to ensure that all documentation is complete, so as to make the possibility of this examination less likely. If deportation is threatened, because not all documents have been presented, a lawyer experienced in this area is recommended to prevent deportation during the process.

If the law from the country of origin has no equivalent to a Ehefähigkeitszeugnis, the Oberlandesgericht (high court) needs to exempt the necessity to produce such a testimony. In addition to that, the Standesamt needs to send the papers to the Oberlandesgericht which then gives the order of exception. In some cities the registrars refuse to send the applications to the court. In cases like these a lawyer should be used.

In most cities the registration of the marriage is only accepted if the foreiger has a valid right to stay or a Grenzübertrittsschein (proof of entrance). In other cities the Aufenhaltsbescheinigung (declaration of status) is enough. It is important to find out exact information about this. If there is no way to obtain any type of "remain to stay status", or at least a temporary visa, the marriage can only take place outside of Germany. All the other steps previously explained in obtaining documents are not applicable.

Be prepared for difficulties with the procurement of a passport. According to § 5 Personenstandsverordnung (PStV = Personal status statute), the citizenship of the foreign spouse is proven with a passport or citizenship identification. For refugees in the asylum seeking process, the obtainment of a passport is often not possible, since they don't want to enter the embassy. The passport can be replaced with a different proof of identity and a citizenship testimony. Often an expired passport is sufficient. Once all the papers are produced the Standesamt will determine a date for the marriage. If the Aufgebotsverfahren (mandatory public notice of the intention to marry) is abolished, however, the registrar can refuse to carry out the marriage if he/she has reason to believe that both partners do not intend to lead a conjugal life partnership. This relatively new regulation seems to rarely come into practice. Many registrars refuse to take an active part in acting as "a spy" or to presuppose anything.

Residence permit status                    <- top
As already mentioned above, it is very hard to get married if the engaged foreigner has already been made illegal. A possibility the legalization is to apply for asylum. However, that only works, if asylum wasn't previously applied for. Applying for second time around can be dangerous. The second application can only work if one can prove or convince the officials that they had returned to their country of origin between both attempts of the asylum application, or if the person has lived in Germany for so long that their personal records have been erased. However if the foreign spouse is wanted by authorities, this second application can lead to imprisonment. To marry as a prisoner is theoretically possible, but the possibilities of deportation in such cases are high.

After the marriage, or the registration of a life-partnership, a residence permit must be applied for, according to § 23 Section 1 AuslG (Ausländergesetz = foreigner law). Therefore it is necessary that a marital life-partnership is led. Both partners should be registered at the same address. Only with just reason will two different addresses work, eg; study in another city, work during the week in a different city, or not enough living space whilst looking for something else. Living under the same roof does not legally have the same meaning as sharing a life together and one should always be prepared for uncomfortable questions from the foreign authorities.

According to legal regulations, the residence permit is, at first, given for three years. However, it has become quite common for refugees to only receive a permit for one year, so that they are forced after that year to come back to the office and reconfirm their Zusammenleben (committment to a shared life). If there are doubts about the Zusammenleben, the authorities can refuse an extension of the permit and can begin additional investigations. No one is forced to adhere to a Scheinehen-Anhörung ("fake-marriage" hearing), however, this hearing can be useful in erasing any doubts. Above all, the foreign spouse has to prove that he or she lives in a marital life-partnership. Information about such inquiries and the questions asked can be found at a local organisation for refugees and/or organisation for binational couples. In absolute emergencies it can prove to be of significant help to, in fact, live together for a short period of time.

A legal request to re-enter Germany after one has married a German is in general not required. If for any reason this should occur, one should not accept it. According to § 9 Section 1 Nr. 1 AuslG and according to § 9 Section 2 Nr.1 DVAuslG (Verordnung zur Durchfürung des Ausländergesetzes = decree of execution of the foreigner law), issuing a residence permit to someone married to a German citizen is possible without re-entering Germany. If married to a non-German citizen, whether that person has to repeat the visa procedure usually depends on if he/she has any right from Familiennachzug (subsequent inclusion of relatives) after § 18 Sect. 1 AuslG, or any other conditions deriving from § 18 Sect. 2 AuslG. If married to a second generation immigrant, it should be observed that the right to join the family in Germany can only occur with compliance to the requirements of the § 18 Sect. 1 Fig 4 or § 18 Sect. 3 AuslG, and the exclusion of any condition deriving from § 18 Sect. 2.

The right to stay independently can be applied for after two years of marital life-partnership with a valid resident permit. Therefore, if after two years a separation occurs, the foreign partner has the possiblity of an independant right to stay (except on the grounds of deportation). This is also valid in a marriage with a non-German citizen. After three years of being married with a German, one can apply for an unlimited residence permit, at this point the marital life partnership must still exist. This has to be confirmed by both partners, providing there are no reasons for deportation or insufficient means of livelihood.

The unbefristete Aufenhaltserlaubnis (indefinate residence allowance), can be nullified at a later point in time in certain cases, for example; if a couple applies for a divorce and state that they have lived separately before the allowance was given. It is then obvious that they did not tell the truth when applying for the unlimited visa. The date of separation, in the application for divorce, should be after the issued date of the unlimited visa.

Investigations                     <- top
Sometimes the foreign authorities will pursue further investigations. Indications that lead towards suspicions of a "fake marriage" are, for example; significant age difference (only if the women is older than the man), marriage shortly before deportation, not having a common language, or having had one or more previous binational marriages. In these cases neighbours can often be interrogated by local police. In some cities the police may want to enter the house to have a look around. Sometimes the previous residence from either partner will be checked to find out whether he/she is still living there. Parents may also be interrogated about the partner of their child, therefore, one should consider either informing their parents about the situation, or asking them not to answer any questions.

Marriage contract and conjugal obligations                   <- top
There are certain obligations that come with a marriage which can still hold relevance even after a marriage is over. It is recommendable to have a notarieller Ehevertrag (Notary marriage contract) in order to exclude some of the obligations. These exclusions cannot, however, affect a third party negatively. The exemption of alimony can therefore be ineffective if one spouse applies for social welfare after the divorce. Under certain circumstances the social office may then ask the ex-partner for money, but a marriage does not always mean obligation of alimony after the marriage. This is in principle only valid if one of the ex-partners is for some reason unable to work.

With a contract, the mutual obligations of alimony after the marriage are excluded, however not during the time of separation. The separation of goods should be arranged in the contract. Also the shared pension should be explicitly excluded. This is important because the process of calculating the shared pensions can prolong the divorce procedure by months. The marriage contract should at best be made either shortly before or after the wedding. It becomes partially ineffective if the divorce is applied for within one year after the marriage contract has been made.

Fatherhood                     <- top
Children born during the time of the marriage and up to 302 days after the divorce are legally considered part of marriage. This means the ex-male partner is obligated to pay a child support. If he doesn't accept fatherhood, he can apply for an affiliation order in a court of law stating that he is not the father. It is important to consider the time limit of two years from the point when he knew this. Also the child represented by the mother can claim a suit. In principle we think that the concrete plan of one spouse to have a child within the next four years is an arguement against protection marriage. However the possibility that you may wish to have a child in the next four years should not be reason to not do it, because the problems that come with "fake fatherhood" are solvable.

We think that all the difficulties connected with a protection marriage can be solved if everyone concerned is aware of how much risk is involved, but the decision can only be made for yourself and without any sort of moral pressure. Institut XYZ

<- back