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Residency permits For Members

How does divorce affect your residency rights in Austria?

Hayley Maguire
Hayley Maguire - [email protected]
How does divorce affect your residency rights in Austria?
Getting a divorce in Germany doesn't necessarily mean everything you have gets divided 50-50, but it still might be a good idea to consider a prenup. (Photo by Cottonbro Studio / Pexels)

It’s a well-known fact that divorce is stressful but throw in visa complications and it can be even harder to navigate. The Local spoke to a legal expert to find out your rights in Austria.

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One of the most common reasons to move to another country is for love and it’s no different in Austria with family reunification a popular reason for moving to the Alpine Republic.

But as with most things in life, the path of true love doesn’t always run smooth, and some international couples find themselves in the divorce court.

What does this mean for those on a family visa that is tied to a partner? Do you lose your right to residence in Austria if you get a divorce? And what can you do to protect your immigration status?

Here’s what you need to know.

READ ALSO: What are the common reasons why a residence permit is denied in Austria?

What is a family visa?

A family visa is granted to third country nationals (non-EEA or Swiss citizens) so they can join their family in Austria. 

Family members are spouses, registered partners and children under the age of 18, including step and adopted children. Spouses and registered partners must be at least 21 years of age.

Holders of a family visa have full access to the labour market but can get health insurance (which is mandatory in Austria) through their partner or spouse if they are not working. 

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What happens if you divorce?

Dr Alexander Raidl, immigration lawyer at Rechtsanwalt Raidl in Vienna, told The Local that foreigners can get divorced in Austria, so there should be no barriers for international residents seeking a divorce – even if they were married in another country.

But if someone with a family visa gets a divorce in Austria, it will impact their residence permit. Although, as long as they can meet certain requirements, they will not have to leave Austria.

Dr Raidl said: “The person with a residency title as a family member has a right of residence in Austria independent of his or her spouse, but this does not automatically remain after divorce. 

“The newly divorced person has to fulfil all residency requirements to maintain it themselves, such as sufficient income, housing and health insurance.”

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If the divorcee can prove they can meet all criteria, then (in most cases) a family visa will be replaced with a Red-White-Red Card Plus, which will allow them to keep living and working in Austria.

For this reason, Dr Raidl advises anyone on a family visa seeking a divorce to wait until they can support themselves independently.

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He said: “Unfortunately this mostly concerns women, so before they agree to a divorce they should be sure that they can support their lives and cover all expenses on their own.

“For example, they can afford an apartment and have a job to get health insurance. It’s better to delay divorce if possible than risk not getting a new residence permit. Always make a plan first.”

Once a divorce is finalised, the family visa holder has to inform Austria’s immigration department about the change in circumstances within one month. They will also have to provide evidence that they can fulfil the requirements of the new residence permit independently.

The same rules apply to a marriage and a registered partnership.

Are there any exceptions to the rules?

A divorcee on a family visa does not always have to meet the requirements of income, insurance and accommodation to change their residence status post-divorce, but it depends on the circumstances.

Dr Raidl explained: “It’s important to know that in some cases a spouse would not have to fulfil the general requirements if it was the fault of the other spouse that the marriage ended. 

“For example, in the case of betrayal by one of the partners, those general requirements are not required, but this can only be evaluated by a court.”

Other reasons for an exception to the rules include forced marriage or domestic violence.

READ ALSO: Divorce in Austria: How the ‘culpability principle’ works and what you need to know about it

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What about children?

For families with children, there is some relief in that minors (those under the age of 18) do not have to change their residence status when the parents divorce.

Dr Raidl said: “Children do not lose their position as a family member of the person who brought the family to Austria.” 

This means only the spouse has to change their immigration status post-divorce.

READ ALSO: COMPARED: Germany’s Chancenkarte vs. Austria's Red-White-Red card for skilled non-EU workers

What is the Red-White-Red Card Plus?

The Red-White-Red Card Plus is a residency permit that allows holders to live and work in Austria with unlimited access to the labour market – as both an employee and self-employed.

This permit is usually issued for one year, or for three years if the applicant has already lived in Austria for two years.

The general conditions for issuing a Red-White-Red Card Plus are a secure livelihood (a minimum of €1,110.26 per month), health insurance covering all risks and suitable accommodation.

Useful vocabulary

Divorce - Scheidung or Ehescheidung

Lawyer - Rechtsanwalt

Family law - Familienrecht

Social security - Sozialversicherung

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