You are here:

German Law/matrimony home protection in divorce

Advertisement


Question
QUESTION: Dear Mr. Andreas Moser...
I am an Indian married to a German man. We got married in April 2013. I came to Germany in Aug 2013. My husband filed for divorce in Oct 2013. I refused to accept it. He asked me to leave to India with all my belongings i said i need time. I went to India for my brothers wedding. When i came back he had moved out. Now there is yet another letter which states that i should leave else he will take me to court to fle a case to get me out of the apartment. I offered some money as support. I am unemployed but he insists i should leave the apartment. I am totally feeling harassed
what are my rights?

ANSWER: Hello Savitha,

during the time of the separation the court can make a decision on who gets to live in the matrimonial home (regardless of who owns it or who is on the lease). Because your husband has already moved out, it seems that he has found another place, so you might have good chances of showing to the court that you need the matrimonial home more than him because he apparently has other options. On the other hand, if he works close to the apartment and you are unemployed, he might have a stronger case because it doesn't really matter where you live while he has to get to work. These decisions depend on a lot of details specific to your case and both your lives.
If the court awards the matrimonial home to you until the divorce will be final, they may also order you to pay the rent or to pay compensation to your husband.

The other problem due to the short duration of your marriage has to do with immigration law. If you received a residence permit for Germany because of the marriage (§ 28 AufenthG), then this can be rescinded as soon as the authorities find out about your separation. If you wish to stay in Germany, you would therefore need to find another reason to base your residence permit on.

One last word about the divorce because you mentioned that you "refuse to accept it". There is of course no way of preventing your husband from filing for divorce. However, he will need to wait until you have been separated for 1 year. It sounds to me liked you lived together from August to October 2013, which would mean that a divorce could not be granted prior to October 2014.

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

---------- FOLLOW-UP ----------

QUESTION: Thank you for the comprehensive response. Yes you are right i cannot stop him from sending a divorce notice. But since the court filng process takes a year i wish to give time to see if he changes his mind.
Some of the other tricky details are...

1. He will not be working from February onwards..he is a PHD student at Kiel and his doctoral studies comes to the end by end of January. I don't know if he has a new job but in all likelihood he does not have a job

2. I am currently unemployed and receive no money from my husband. I even offered him half the rent for me to stay. He hasn't even paid me money for my medical insurance or my deutsch classes. And has been mentally harassing me not to come to Germany

3. I have found a job in düsseldorf and my work visa is in process.

4. The only reason i need to stay in this apartment is because i am registered in this address and its important for me to have this address until i receive my work permit

5. I am.meeting the foreign authorities to give them the situation.

The big question is what do i do now? Stay here or move out? Its a catch 22 situation.

Thanks so much
Savitha

Answer
Just briefly:

If both of you are unemployed (or don't have much income), then nobody needs to pay anything to nobody. Your husband is not financially responsible for your health insurance of the language course if he won't find employment after finishing his PhD.

It sounds to me like you should talk to your husband and tell him that you only need the apartment for the address and that you will move to Düsseldorf as soon as you can. If he would otherwise move to the apartment, you could of course still remain registered there and he will forward your mail to you.
It sounds like you will get a residence permit based on employment soon, so that this matter should be resolved soon. I would probably stay there for now, but explain to your husband that it won't be for much longer. That will hopefully dissuade him from going to court.

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

German Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

©2016 About.com. All rights reserved.