What happens in case of a divorce if the residential status depends on the (marriage) partner?
In the case of a divorce, it needs to be clarified first which kind of residential status the mar-riage partners have and if both or one of their asylum application is still being processed or if protection status has already been granted.
It should also be considered whether the stay – in our case, usually the women’s stay – depends on cohabitation or marriage status. There are different constellations:
- Firstly, the woman can be granted protection for family members of refugees, which means that, as part of the family unit, she will be regarded as having to face the same risk as the persecuted person and will (also) be recognised as a refugee. Moreover, it will be examined, as a rule, if she “merely” followed her husband and if she has no individual reasons for flight and faces no individual risks of persecution. If she only receives refugee status for family members because her husband has been persecuted, then a divorce might considerably affect the woman’s residential status.
- The same applies if a woman has followed her husband for the purpose of family reunification and if she received a residence permit for family-related reasons. In that case, a divorce can affect her residential title considerably. In the worst case, she might forfeit her residence permit.
Accordingly, in the case of a divorce, it should be taken into consideration if the woman might have her own reasons for having to fear persecution, which she as yet has possibly not asserted, or if the divorce could amount to a new obstacle to deportation (see above 2.2).
In many cases, the divorce as such or, for example, the circumstance that the children are supposed to remain with the husband in the country of origin, can be considered a new obstacle to deportation. This issue should be clarified in each individual case by consulting a lawyer.
What is different again is the situation in which parents have children together who receive refugee protection through the father. In that case, the divorced woman can as well secure her residence title by providing parental care (see also here)