Proving Cohabitation of Married Couple

Everybody’s life is different – some families are more typical and some less. When living separately from one’s family you have the necessity to show the authorities that this atypical relationship is valid. But how does this relate to the general procedural rule that the person claiming something must prove it? The Hessisches OVG answered this question on January 16, 2007 (re TG 2879/06).

After the foreigners office had collected enough information, they wanted to expel Hassan because he was only leading a sham marriage. He and his – in accordance with their marriage certificate – wife allegedly never lived together. This couple wanted to convince first the office and later the courts that they had a real relationship – however atypical it might be.

The Ausländeramt and lower courts denied that Hassan and his wife had ever lived together. During the period of December, 5 1997 (date of their marriage) through April 30 1998, Hassan did not even claim to have lived together with Fatma. Hassan admitted and confirmed by a letter of his brother’s to the office, that he did not immediately move into Fatma’s apartment. Beyond that, Fatma’s two room apartment was inhabited not only by herself but also by four other persons – to which Hassan did not belong. Because Fatma was not able to pay here apartment’s rent, she was to be evicted. During eviction, the bailiff gained the impression that Fatma had no idea where Hassan lived. She could also not report of his whereabouts or his job situation. Hassan later admitted not to have known of her financial distress. During an official questioning, neither of them could share details on the other person which would be typically expected from a married couple leading a joint life. All these incidents clearly show this couple did not cohabitate with one another – however atypical they might have wanted to structure their life.

Whenever a court has to test if cohabitation exists, it will normally apply the following principles: The protection of marriage and the family in art. 6 I GG is not then applicable when a marriage is formally correct. In other words, simply because you have a marriage certificate does not mean, you have a marriage in terms of the law. Relevant is rather if these persons also show a personal relationship with one another – a community of mutual assistance. Typically, married couples show their practical, emotional, and mutual solidarity for one another by living together in the same apartment or house. However, the state has no right or duty to determine whether married couples must live together in one apartment or in any other way determine the rules of how they live together. Following the right of free development of one’s personality, as guaranteed in art. 2 I GG, the couple itself has the right to determine how it wants to structure its life. Even when the married couple decides for private or factual reasons to live in two apartments, the state has to meets its constitutional guarantee to protect and guarantee the marriage. In cases where the couple decides to live separately, they have to actively show their cohabitation and that they are not just acquaintances.

When it comes to understanding this judgment in terms of liability of proof, the more the couple lives an atypical life, the more it will have to show circumstances that they do have a community of joint assistance. They are to show personal details that will persuade others that they are really living a marriage. Such details could be joint hobbies, mutual and joint visiting relatives and friends, traveling together, mutual support in times of need or sickness, shopping for both partners and not only one, joint raising of the children, practical and congruent interests. The main thing is that they show an intensive personal connection.

This duty of participation derives for the court procedure from §86 I 1 VwGO and for the procedure at the office from §82 I 1 AufenthG. Both are based on the consideration that the foreigner himself knows his personal circumstances best and that is why he is always asked to bring forward arguments that can are of advantage for him and make his circumstances understandable.





Published on the old CMS: 2007/10/5
Read on the old CMS till November 2008: 127 reads