When people get divorced, it brings many challenges. Apart from the emotional or organisational consequences, such as reorganisation, finding a place to live and orientation, a divorce is also accompanied by legal challenges. However, for people who derive their residence permit in Austria through marriage, there may be issues other than family law. People who are in Austria as “family members” often have to think about whether it is even possible for them to remain in Austria after a divorce.
Through marriage in Austria- Residence permit of family members
There are different ways in which people can legally arrange their residence in Austria as a spouse under the Settlement and Residence Act (NAG). Basically, the right of residence of a person from a third country is then derived via the respective spouse. Depending on the right of residence of the person joining the spouse, whether he or she is an EU citizen or has at least lived or worked in another EU country for some time, it may be easier or more difficult to obtain a right of residence. Excitingly, from the point of view of residence law, it is “better” to marry a German or a Spaniard in Austria than a person with Austrian citizenship. Different requirements have to be fulfilled based on the person bringing them together. The respective residence titles that are granted have partly different names and no consistent period of validity. What all these residence titles have in common, however, is that the circumstances change when a divorce occurs and thus the status of family member ceases to exist. In such a case, it is important not to bury one’s head in the sand but to proactively approach the authorities in order to secure one’s right of residence in Austria even after the marriage has ended.
Divorce is imminent – what does that mean?
Sometimes it is worth taking a step back and considering whether a divorce is really the best solution at this point in time. For a divorce to be amicable, the first requirement is that both spouses want a divorce. If one person’s right of residence depends on the marriage, this person will regularly seek a divorce less urgently than the other person. If it is not possible to agree on a divorce by mutual consent, and if nothing serious has occurred that the spouse seeking a divorce can accuse the other person of, it is possible to file for divorce at the earliest three years after the dissolution of the domestic community.
After divorce, the competent authorities have to issue a residence title to the (former) family member under certain conditions, the purpose of which corresponds to the previous purpose of residence. Sounds complicated, and sometimes it is. Unfortunately, the Settlement and Residence Act is not particularly user-friendly. In concrete terms, this means that no obstacle to grant, such as an entry or residence ban, should exist and the general requirements for the issuance of a residence title must be met. The duration of the marriage may also play a role.
General requirements of a residence permit
The general requirements are essentially that the stay of the foreigener must not be contrary to public interests, that the foreigner has accommodation customary in the locality, that health insurance exists and that it is ensured that the foreigner’s stay will not become a financial burden for Austria. To put it simply: after the divorce, you have to prove that one has a job or otherwise secure income (e.g. post-marital maintenance, savings), a sufficiently large flat, health insurance – but no criminal record.
However, for people who manage to get the marriage divorced due to the overwhelming fault of the other spouse, it may be easier to keep their right of residence, even though you may not meet these requirements.
In any case, it is important to inform the competent authority about the new or changed circumstances of the divorce within one month. The authority will then check whether the original residence title/right of settlement can be retained or whether you might be granted another residence title. In any case, it makes sense to take care already before the divorce that you can prove in time that you meet the necessary requirements to remain in Austria after the divorce. By the way: If you have not married but live in a registered partnership, comparable rules apply.
