During a study visit to the USA, Julia, an Austrian, meets the American football player Aaron and falls in love with him. After only a few weeks, the two decide to marry and live together in Austria in the future.
As a US citizen, Aaron is a third-country national, but as spouse of an Austrian woman who finds a well-paid job after returning from the USA and has also inherited a family home from her parents, he receives a residence title as a “family member” without any problems. This residence title is initially issued for one year, can be extended on application and entitles the holder to take up any gainful employment in Austria.
Just a few weeks after the wedding, things start to crumble between Julia and Aaron. Aaron is disappointed that he cannot continue his career as a football player in Austria and cannot find any other employment. Julia, on the other hand, is absorbed in her new job and often works late into the night. Just three months after the wedding, Aaron tells Julia that he is no longer interested in a life with her and wants a divorce. After an initial shock, Julia realises that this marriage was a big mistake and agrees to the divorce.
In the meantime, however, Aaron has already started taking a German course and has fallen in love with his German teacher Sarah, with whom he begins a relationship. For this reason he wants to continue living in Austria after his divorce, although he has learned from his experience with Julia and wants to take his time with a possible second marriage. How and under what circumstances can Aaron maintain his right of residence in Austria even after his divorce with Julia?
Family members who have been granted a residence title “family member” acquire an independent right of settlement. However, if the status of family member ceases due to divorce, this residence title can no longer be issued. However, if the former family member fulfils the general requirements for the issuance of a residence title and there are no obstacles to the issuance of a residence title, a “Red-White-Red Card Plus” is to be issued. The cessation of the status as family member has to be notified to the authorities within one month.
Residence permits may only be granted to a foreigner if this is not contrary to public interests and if relations with other states are not substantially affected, if a legal entitlement to accommodation customary in the locality is given, if health insurance coverage covering all risks exists and if sufficient means of subsistence can be proven.
Obstacles to issuance are, for example, valid entry bans, overstaying the visa-free stay in Austria or legally binding punishments for unlawful entry into Austria.
Aaron has lived in his wife’s house until now, was covered by health insurance through her professional activity and does not receive any income himself. It is therefore currently not possible for him to fulfil the general requirements for the granting of a residence title in Austria. Under certain circumstances, however, a residence title can be granted to family members even if they do not fulfil the general requirements.
This is the case if the spouse dies, the spouse is to blame for the divorce or for reasons that are particularly worthy of special consideration. Such reasons worthy of special consideration exist in the case of victims of a forced marriage or if family members were victims of violence or if the residence title was withdrawn because the merging spouse was legally convicted of a committed criminal offence.
If Aaron were to apply for a Red-White-Red Card Plus immediately after his divorce, his application would have to be rejected because the general requirements for a residence title were not met and Aaron would lose his right of residence in Austria. One of the exemption provisions would not apply to him either.
He should therefore try to delay the divorce until he can stand on his own two feet, i.e. until he has found his own accommodation, taken out health insurance and got a job that guarantees him at least a certain basic income. Once he has achieved this, he can also be granted a “Red-White-Red Card Plus” after the divorce.