Marriage of convenience
A marriage of convenience is a formally valid marriage , the purpose of which is not the formation of a conjugal support and cohabitation community (defined for Germany in § 1353 BGB ), but which is concluded exclusively so that one of the partners, both or third parties have a legal advantage from the To get married. In the area of immigration law , one speaks of a fictitious marriage (among political activists also of a protective marriage ) if the marriage only pursues the purpose of granting the foreign spouse a right of residence or of suspending an obligation to leave the country.
The motives of the spouse from whom a right of residence is derived can be very different. It is known to enter into fictitious marriages for money or other advantages (services, sexual intercourse, material assets), out of willingness to help or pity, but also on the basis of deceptions about the actual purpose of the marriage.
Definition of terms
Criminologically defined, a marriage of convenience is a connection in which no common lifestyle is sought (anymore), but rather has the purpose of deceiving the authorities with regard to the allegedly common lifestyle to obtain a privileged residence status for the foreign partner, to which the foreign partner is otherwise not entitled would.
Conceptually, a marriage of convenience must be distinguished from a marriage of convenience . In a marriage of convenience, certain advantages for the spouse are to be realized at the same time as the marriage. B. can be of a tax, inheritance or residence law nature. The nature of the conjugal partnership is not called into question and is preserved. The fictitious marriage, on the other hand, aims exclusively at obtaining (usually foreigners) legal advantages without the will of the married couple creating a marital partnership in the legal sense. Rather, this is only faked.
Legal situation in Germany
Legal treatment
In Germany, marriage is protected by constitutional law ( Art. 6 GG ), so foreigners married to Germans are generally entitled to a residence permit ( Section 28 AufenthG ), even if they were required to leave the country before the marriage. The protection of marriage and family also leads to a legal obstacle to deportation in the event of an imminent marriage ( Section 60a, Subsection 2, Residence Act). In certain cases, spouses of foreigners are also entitled to a residence permit (see Section 30 of the Residence Act); § 3 FreizügG / EU applies to the spouses of EEA citizens who are entitled to free movement .
Systematics
A marriage of convenience can be differentiated in terms of time and partnership into initial or subsequent marriage of convenience and one-sided and two-sided marriage of convenience. In the case of an initial marriage of convenience, at least one of the partners does not intend to have a conjugal partnership when they get married. A subsequent fictitious marriage usually comes about when the partners give up the initial management of a conjugal partnership, but maintain the appearance of the conjugal partnership to the outside world. In the case of a unilateral fictitious marriage, only one partner does not intend to be married, and in a two-sided fictitious marriage, neither partner intends to live a marriage.
Legal consequences
An initial, bilateral marriage of convenience can, if necessary, be overturned by the family court ( Section 1314 Paragraph 2 No. 5 BGB), whereby the application can also be made by an administrative authority (under state law e.g. the Public Order Office ) ( Section 1316 Paragraph 3 BGB). For unilateral or subsequent sham marriages, there is only the option of divorce, usually only after the end of a year of separation.
There is no constitutional protection under constitutional law for a formally (still) valid marriage of convenience, so that no entitlement to residence rights can be derived from it (see Section 27 subs. 1, 1a AufenthG). An already existing or granted right of residence does not immediately cease to exist, however, if necessary, the competent authority can terminate or shorten the period of validity of the residence permit.
Entering into a marriage of convenience is not a criminal offense in Germany. Only if a residence title is applied for because of the marriage and thus the existence of a conjugal partnership is deceived, a criminal liability according to Section 95 subs. 2 no. 2 AufenthG come into question. The German spouse who confirms the conduct of a marital partnership to the immigration authorities is also liable to prosecution. In terms of criminal liability, it is irrelevant whether the fictitious marriage was entered into against payment and presented to the outside world as a lived marriage or whether the actions were carried out for other, non-monetary motives. Furthermore, it is irrelevant for the implementation of the criminal offense whether or not a residence permit was actually obtained on the basis of the incorrect information.
In practice, German and foreign parties involved in marriages of convenience are regularly convicted. The relevant evidence is usually provided by the immigration authorities and the police through simultaneous and separate questioning of the partners about the circumstances of the meeting, marriage and living conditions, on-site investigations (e.g. questioning neighbors, unannounced control visits in the early hours of the morning etc.) collected. These are then regularly sufficient for the criminal courts to convict.
In terms of administrative law, the initial fictitious marriage does not lead to a right to a residence permit. If this is (initially) granted, it can usually be withdrawn ( Section 48 VwVfG of the respective federal state). In the event of the later annulment of a marriage that was initially actually being lived, the foreign spouse may have an independent right of residence ( Section 31 of the Residence Act). However, in accordance with Section 55 (2) no. V. m. Section 95 (2) No. 2 AufenthG represent grounds for deportation, which means that the general conditions for granting the residence permit no longer apply (see Section 5 (1) No. 2 AufenthG). As a rule, however , an expulsion order is only issued if there would be no other right of residence without the marriage of convenience.
It is also possible that an initial fictitious marriage will develop into an actually lived marriage with the corresponding advantages in terms of residence rights. In any case, if there are justified doubts about a marriage worthy of protection (e.g. because extensive investigations with negative results were already carried out at the beginning of the marriage), the material burden of proof lies with the applicant foreigner. The non-provability of a marriage (now) falling under Article 6 (1) of the Basic Law then has a detrimental effect on the foreigner.
Authorities and courts are not allowed to research the emotional relationship between the partners and, in particular, their mutual sex life. They belong to the intimate sphere , which must also be respected by authorities and courts. In particular, the partners can also agree that they do not want to have sexual contact with each other without the constitutional protection being lost and a marriage of convenience being automatically assumed. Conversely, however, a partnership-like intimate sphere indicates the existence of a marital partnership, so that it may be necessary for those affected. It may be useful to provide voluntary information about this.
Civil partnership (until 2017) and homosexuality
The same-sex civil partnership according to the Civil Partnership Act can also bring advantages to one or both partners in other areas of the law, so that here too, as in Germany, there could always be incentives to enter into such a civil partnership. The term bogus life partnership is rarely used, at most in a legal context where differences are involved. Mark Dominik Hope in 2002 was of the opinion that sham partnership or sham partnership are grammatically too comprehensive and used the term certificates egistered partnership .
While the bogus marriage is formally effective and can only be canceled ex nunc, the bogus civil partnership is deemed to be ineffective from the start (Section 1 (1) No. 4 LPartG old version). This results in u. U. considerable legal uncertainties both for the civil partner and for third parties whose rights are influenced by the existence or non-existence of the civil partnership.
Heterosexual marriages of convenience and marriage of convenience between homosexuals or with heterosexual partners have existed for centuries for various reasons (residence, care, reassurance of relatives and society, especially earlier containment of rumors and as an argument against prosecution). Sometimes heterosexual marriage is also seen as part of a " cure " for homosexuality. Same-sex life partnerships for mutual support that were entered into by heterosexuals remained relatively seldom.
Legal situation in Austria
civil right
A marriage that takes place for the purpose of obtaining unlimited stay possibility in Germany or the unhindered ingress to the Austrian labor market without the spouses intend that a common family life within the meaning of Art. 8 ECHR to lead can, by the court void explains become. Only the public prosecutor has the right to bring an action for annulment. The marriage is valid until the marriage is annulled by a judgment of the court.
Administrative law
Since the introduction of the Aliens Law Package in 2005 , marriage of convenience has been referred to as "residence marriage". Section 30 (1) of the Settlement and Residence Act (NAG) stipulates that spouses who do not lead a family life together within the meaning of Art. 8 ECHR may not refer to marriage for the issue and retention of residence permits.
Against a stranger who entered into a marriage, invoked the marriage for the issuance of a residence permit or an exemption certificate, but never had a common family life with the spouse within the meaning of Art. 8 ECHR - i.e. at no time - can be up to to be issued with a five-year residence ban ( Section 53, Paragraph 2, Clause 3, No. 8 Aliens Police Act 2005 - FPG).
Criminal law
An Austrian or a foreigner authorized to settle in the federal territory makes himself a criminal offense under Section 117 Aliens Police Act 2005 if he marries a foreigner without wanting to lead a family life together ( Art. 8 ECHR). The prerequisite is that the perpetrator knows or should have known that the alien intends to invoke this marriage in order to obtain or maintain a residence permit, to acquire citizenship or to withhold measures to terminate residence. There is a threat of a fine of up to 360 daily rates .
Anyone who participates in establishing the facts before an authority appointed to prosecute has found out about his fault is not to be punished for this.
A prison sentence of up to one year or a fine of up to 360 daily rates is imminent if the same offense is intentional for enrichment , i. H. for a fee, was committed.
The commercial mediation of residence permits is punished more severely (with imprisonment of up to three years).
Legal situation in Switzerland
Legal Effects of Marriage
Until 1992, a foreigner automatically obtained Swiss citizenship if she married a Swiss citizen; conversely, however, a foreign man only received a simplified naturalization if he married a Swiss woman. Since then, the sexes have been treated equally. In all cases, marriage leads to a temporary right of residence. If a marriage lasts longer than three years, the residence permit will be extended. If you are married to a person who has Swiss citizenship or a permanent residence permit (C permit), you will receive the C permit after 5 instead of 10 years of residence.
Criminal liability
Entering into a marriage of convenience in and of itself was for a long time unpunished. According to Section 118 of the Immigration and Integration Act, which came into force in 2005, it is a criminal offense who:
- who gives false information or withholds essential facts so that someone receives or retains a right of residence
- anyone who enters into a marriage, arranges or facilitates one in order to circumvent the laws on foreigners.
Both offenses are punishable by a fine or up to three years in prison.
civil right
Once a marriage of convenience has been concluded, it can be recognized as an abuse of law under civil law and divorced. The foreign partner loses the right of residence and the Swiss partner loses part of his pension entitlement as a result of the divorce.
According to the Federal Office for Migration, facts such as marriage shortly before the threat of expulsion, brief acquaintance, large age difference, no shared apartment, no common language, marriage mediation by third parties, or if the Swiss partner belongs to a social fringe group are considered indications of a bogus marriage.
Movies
- The US comedy Green Card is about a marriage of convenience for the purpose of obtaining a residence permit.
- Happiness in the Attic (1927) about a fake marriage to protect a woman from prosecution.
- Against the Wall (2004) is about a marriage of convenience between two Turks to escape the influence of the bride's parents.
- Lorna's silence is about a marriage of convenience that an Albanian woman has to enter into a criminal environment in Belgium.
- The comedy Deutschmänner is about the parallel situation of a pseudo-civil partnership .
literature
- Hayriye Yerlikaya, Esma Çakır-Ceylan: Forced and sham marriages in the focus of state control. A consideration of the most recent draft law to combat forced marriage and the prevention of marriages of convenience in the light of victim protection , Zeitschrift für Internationale Strafrechtsdogmatik 2011, 205 ( PDF )
- Christian Sering: The new "Forced Marriage Combat Law" , NJW 30/2011, 2161
- Helgo Eberwein, Eva, nurse: Aliens law for studies and practice , LexisNexis, Vienna, 2011, ISBN 978-3-7007-5010-9 .
See also
Web links
- Sham marriages / marriages of convenience - On the problem of marriages of convenience between Germans and foreigners , lawyer Dr. Palm, Bonn
- Allegation of fictitious marriage - legal problems
Individual evidence
- ↑ Carolin Wiedemann: History of a fictitious marriage: The marriage certificate. In: Spiegel-Online. October 23, 2012, accessed August 13, 2020 .
- ↑ Mark Dominik Hope: The consideration of the registered civil partnership in the Residence Act ( Memento from April 17, 2016 in the Internet Archive ) (PDF; 6.6 MB), Legal Series Tena Volume 22, jurawelt.com
- Jump up ↑ Ralph Göbel-Zimmermann: “Sham marriages”, “sham life partnerships” and “sham fathers” in the area of conflict between constitutional, civil and migration law . In: Journal for immigration law and immigration policy . March 2006, p. 81–12 ( table of contents of the issue [PDF; accessed on August 13, 2020]).
- ↑ Hetero-Omis make homosexual marriage , queer.de, January 14, 2005
- ↑ Ueli Zindel: Until the authorities divorce you. In: Observer . October 27, 2003, accessed August 13, 2020 .
- ↑ Jürg Rohrer: Embarrassing how fictitious marriages are exposed. In: Tagesanzeiger. March 3, 2015, accessed August 13, 2020 .
