The community card is undoubtedly one of the most requested residences by foreigners from all over the world who start their new life in Spain. So much so, that after having registered their civil partnership (“pareja de hecho”) or having married a Spanish or European Union citizen, many of those foreigners can be found in Spain with their work and residence permit valid for 5 years.
However, and given that the granting of this residency requires registering a legal union between both members of the couple, it is normal to wonder what would happen if the civil partnership or marriage breaks up. Would I lose my residency status?
In this article, you are about to find everything you need to know to keep your family member of an EU citizen visa in case of divorcing or breaking your civil partnership.
Hint: it is completely possible to avoid losing residency in these cases, although for that it will be necessary to fully understand the requirements that we will see below.
If I cancel my civil partnership or marriage, will I really lose my residency?
This is the first question we must solve because, in fact, you won’t necessarily lose your residency.
That is, when you apply for the family member of an EU citizen card, you obtain a residence and work permit valid for 5 years.
If during this period get divorced or terminate your legal partnership, you may find yourself in two different situations that will dictate how to proceed so that you do not have to lose the right to live and work in the country:
- First, if you meet any of the requirements we will see in the next section, you would not lose your EU card. You would keep your card for the complete 5-year period, and then renew it without any trouble at the end. These requirements have to do with how long you have been living with your partner, as we will now explore.
- On the other hand, if you do not meet these requirements, you will have to change from the EU regime to the general immigration regime, modifying to an initial residence and work permit.
But there is an important caveat here. As you can see, it is in fact quite complicated to lose your family member card: there are possible alternatives for all cases. However, in this last case of modifying to the general regime, you would not be able to modify to self-employed or employed work permit if the divorce or cancellation of the legal union takes place within a period of less than one year after its constitution.
Then the authorities could understand that you married or constituted the civil partnership for convenience.
Requirements to maintain the family member of an EU citizen visa after separation
Fortunately, the Spanish Immigration law through its 240/2007 Royal Decree, allows you to maintain your family member of an EU citizen residency even if the marriage or domestic partnership is terminated.
For that to happen, two main requirements must be met:
- First, the marriage or civil partnership must have lasted at least 3 years
- Of these 3 years, a minimum of 1 must have been in Spain
If you meet both requirements, once the 5 years of validity of your card as a family member of an EU citizen comes to an end, you will be able to renew your residency and obtain a permanent residency card (for 5 more years, which will not specify its dependence on the European citizen).
But what happens if you do not meet these requirements?
In case you do not comply with these 2 fundamental points, it is still possible to keep your residency in Spain, although it will be a bit more complex.
Only foreigners who find themselves in one of the following situations will be able to keep their EU card after breaking up a domestic partnership or getting divorced in less than 3 years:
- If you have been a victim of maltreatment (and you can provide proof of this)
- If you have had a child together, and you have custody of that child
- If you have a child in common, you do not have custody, but a judge grants you the right to visit the children through a sentence (and that child is living in Spain)
The legal process to avoid losing your community card
In any case, if you want to keep your family member card after terminating your relationship with the EU citizen and still be able to stay in Spain, it will be very important that you follow the process detailed below.
The first thing you will have to do is to cancel the partnership or divorce.
It won’t be until you receive a notification that the cancellation process has been completed that the relationship is not effectively broken from a legal standpoint.
Once both parties receive this notification, you will have one month to notify the immigration office about your new status.
While it is true that the immigration law does not clearly specify what this maximum notification period is, we recommend that you do so as quickly as possible. And, in that sense, one month is a reasonable period of time.
If more than 3 months pass and you have not made this notification, you will lose the right to renew your residency.
But be careful.
Depending on the Autonomous Community in which you are currently located, if you have stopped living together for a certain period of time (even if you have not canceled the marriage or pareja de hecho), it could also be considered that the relationship at a legal level has been terminated; and that would prevent you from renewing your residency.
In other words, if you have not been living together for months and you are not registered at the same address (you don’t have a joint “empadronamiento” anymore), in the eyes of the authorities it could be considered a situation comparable to divorce, and that would prevent you from maintaining your residency.
Therefore, our recommendation is that if you are about to get divorced or have already done so, you contact our team of immigration lawyers so that we can give you personalized advice about your current legal options: