HOME          ANDREAS MOSER          AREAS OF LAW            BLOG 

- Frequently Asked Questions

I have noticed that I receive many e-mails with the same questions, so I have started to post the most frequent questions - and of course the answers to them - for everyone to read for free. As this section might already answer many of your questions, I invite you to browse these FAQ before you contact me (or any other lawyer) about your case.

FAQ on divorce in Germany

FAQ on international child abduction

FAQ on German citizenship (with infographic)

FAQ on naturalization in Germany from abroad

FAQ on inheritance in Germany

FAQ on child custody in Germany

FAQ on filing a constitutional complaint in Germany

FAQ on freedom of movement within the EU

FAQ on working with me as your lawyer

CAVEAT: Legal cases can be complicated with thousands of possible constellations. It would be impossible to word these FAQ in a way that would make them fit for all scenarios. These FAQ were written with "standard" cases in mind that constitute the large part of requests that I receive. They might not be applicable in unusually complex cases.
To find out where your case is on the complexity scale, some common sense will help. Take the example of divorce: If you are two foreign nationals who moved to Germany, or you are a foreign national married to a German citizen, these FAQ should give you some pretty good guidance. If on the other hand, you are a dual citizen of Ecuador and the USA and got married in Cyprus to a dual citizen of Germany and Israel after you signed a prenuptial agreement in Switzerland which also governs the fate of your corporations in Russia and Turkmenistan and you have two children in school in Australia plus an adopted child from Zambia, you know that these FAQ cannot possibly address your case.

FAQ on divorce in Germany

1. We did not get married in Germany. Can we get a divorce in Germany or do we need to return to the country of marriage?

As long as you have some ties to Germany, whether it be residence or citizenship, you can file for divorce in Germany. You do NOT need to return to Las Vegas, Denmark or wherever you might have gotten married. - Although it might of course be a good excuse to do so if you got married in Fiji, for example.

2. We are both non-German citizens. Can we get a divorce in Germany?

Yes. As long as one of you has residence in Germany for at least a year, or both of you have residence in Germany at the moment, the German court will accept your divorce case.
However, if you are both foreigners, the German court might apply the divorce law of your home country. This is actually often quite an interesting option, because you can use your home country's law without having to go back or having to undergo the court process in your home country.

3. Will my home country recognize the German divorce?

That depends on your home country of course. But if minimum requirements of due process are kept (such as giving the other party time to respond and letting them know of the court date in due time), most countries do fully recognize German divorces and other court orders.

4. What are the requirements to get a divorce in Germany?

If the court applies German law, you only need to show that you have been separated for one year. You do not need to explain why the marriage broke up or why you separated. This one year separation requirement can also be met if you still live at the same address. You are just not supposed to sleep in the same bed or engage in too many joint activities.
This also enables a couple who both want a quicker divorce to file way before the one year of separation is fulfilled by just claiming that they have been separated for one year. If both spouses stick to the story, the court is not going to find out about it and will grant the divorce.

5. I am not yet separated for one year and my spouse won't cooperate, but I still want a quicker divorce. Any chance?

There might be a chance, but it's not easy: We could either try to convince the German court to use the law of your home country or the country of your last residence, which might not have the one year separation requirement. Or you could try to argue that remaining married poses an undue hardship on you. The courts only accept this argument if your spouse has committed criminal acts against you or is constantly harassing or cheating on you. Usually then, these cases become so messy that the court process takes over a year and you might as well have waited.

6. How long does a divorce proceeding take in Germany?

If both of you live in Germany and you have only the divorce (no custody, no financial claims), it usually takes between 4 and 6 months. If you argue about custody and visitation for your children, about child support and alimony, about your house and your retirement, it might easily take a few years.
If your spouse lives in another country, getting him or her served is the things that drags it out. This could mean another one or two months if we need to get somebody served in the EU or in North America, or up to a year if you need to get somebody served in Kazakhstan.

7. Do we both need an attorney?

No, only the filing party needs an attorney. The respondent does not necessarily need an attorney if it's an amicable divorce.
Sometimes, spouses even come in together to see me to take care of their amicable divorce. No other attorney is needed in these scenarios and you save quite some money.

8. Can I file for divorce without knowing where my spouse lives?

Yes, but we would need to show to the court that we have done everything reasonable in our power to locate him or her, e.g. by researching public records, by calling or e-mailing relatives, friends, former co-workers of your spouse. If all of this will yield no result, you can still get a divorce.

9. I would like to have an annulment instead of a divorce.

You would need to have a very good reason for that: Either you found out that your spouse is already married to somebody else. Or you can prove that your spouse lied to you or failed to disclose important things that would have prevented you from getting married to him or her, had you known about them (e.g. your spouse has a lethal sexually transmittable disease and did not tell you).
Without very good reasons (and the evidence to support them), it's virtually impossible to get an annulment from a German court.

10. How soon after a divorce can I get married again?

Whenever I hear that question, I would like to ask "Didn't you learn a thing from the last relationship? Why don't you enjoy single life for a while?". But the client is king, and no question remains unanswered: After the court grants the divorce, both spouses still have one month to appeal. Unless both of you waive their right to an appeal at the divorce hearing, you will have to wait this one month before you can get married again.

FAQ on international child abduction

1. What is an international child abduction?

The removal of a minor child from one country to another country without the (other) parent's consent constitutes an international child abduction. It usually happens when parents who are from different countries split up and one parent wants to go back to his/her home country and takes the child with him/her.
It also constitutes an international child abduction if the other parent allows you to take the child to another country (usually for a holiday) and you then decide to not return the child to the country of the last residence after the agreed stay is over.

2. What is the remedy against an international child abduction?

If both countries are member states of the Hague Convention on Civil Aspects of International Child Abduction, then you can request the return of the abducted child within one year of the abduction or retention.

3. What do I need to prove for a successful return of my child?

You need to prove that (1) you have at least shared custody for the child, (2) that you have been exercising that custody, e.g. by living in the same house with the child, or also by having regular visitation with the child if you live separated from it, (3) your child had established residence in your country by living there for at least a few months, (4) the other parent either abducted the child to another country or overstayed an agreed visit to another country without your consent.

4. Should I get the police involved?

In a regular case, I would recommend against it. Law enforcement won't bring your child  back without a court order and if you know where your child is staying there is nothing what you need law enforcement for. It usually only adds to the tensions between the parents, which is the last thing that you need.

5. How should I react once I find out that my (ex-)partner abducted our child to another country?

Find a lawyer in that specific country who has experience with child abductions. In Germany, you can of course contact me. For other countries, you can either look at the website of www.reunite.org or contact your Central Authority under the Hague Convention.

You should file for the return of your child as soon as possible to prevent any impression that you are giving consent to the abduction by tolerating it. You should also avoid any other behavior that could be construed or interpreted as consent, e.g. helping the other parent to get settled in the other country, sending money or personal items, working out a visitation schedule for contacts with the child in the other country, discussing which school the child should attend in the other country, etc.
At any step, you should make clear that you won't accept the retention of the child in the other country.

6. Once I file for the return of my child, how long will it take?

Germany has vowed that child abduction proceedings in its courts should not take longer than 6 weeks, and that timeline is usually met.

7. Will I need to submit evidence about who is the better parent?

No. The child abduction proceeding under the Hague Convention is NO child custody proceeding. It does not matter who is the better parent or who spends more time with the child or anything like this. It is just a dispute about the country in which the child should live. The courts of this country will subsequently have to deal with any arguments about custody, visitation, child support, etc.

One exception to this is if there is a severe physical threat to the child if it were returned to its home country. This is a very rare exception however, which is only met if the parent asking for the return of the child is a homeless alcoholic or something of similar gravity.

8. What happens after I win the return of my child?

As the decision is not a custody decision, the abducting parent is free to return to your country with the child that he/she had abducted. You therefore do not necessarily win physical custody for your child.
All of this needs to be sorted out in a court in your country. Most abduction cases are actually followed by cases for child custody and visitation very swiftly after the return of the child.

9. How do I prevent a child abduction if I fear that one will happen?

If a passport is needed for the child to travel (which is not the case between many European countries), then you could of course try to hold on to the passport.
If you have very specific reasons to believe that a child abduction is upcoming (e.g. you found one-way tickets that your spouse booked, or your spouse transferred all his/her money to another country and quit his/her job), you could also get a court order in your country that specifically does not allow any travel with the child, that requires the deposit of any passports with the court or police, or that alarms the border and airport authorities that this child should not be allowed to travel.

10. Which countries are member states of the Hague Convention?

A current list can be found here: www.hcch.net/index_en.php?act=conventions.status&cid=24

FAQ on citizenship law in Germany

1. Does Germany have a system of ius sanguinis or ius soli?

Germany has traditionally always been a ius sanguinis country, meaning that citizenship is passed on to the next generation by birth, irrespective of the place of birth. Only recently (1999) has the law been amended to incorporate ius soli, giving German citizenship to a child born in Germany to two parents of foreign citizenship. I will explain these different ways of obtaining citizenship in more detail below.

2. Does ius sanguinis mean that I am entitled to German citizenship if I have German great-great-grandparents, even if they left Germany generations ago?

Possibly, but not automatically. You are a German citizen under ius sanguinis if your ancestors had German citizenship at the time of the birth of the next generation and passed on this citizenship respectively. It is therefore necessary to find out the exact timeline of events to determine if your ancestors might have lost their German citizenship (e.g. by giving it up voluntarily, or by accepting a foreign citizenship) or if they still had it and could thus pass it on. You see that this requires a lot of research into your family history and into the respective laws of the relevant points in time. But if you are lucky, you might have German citizenship even if your parents never knew about it and neither you or them have ever been to Germany or even have a German passport.

3. Is there any chance to obtain German citizenship for someone without German ancestors?

Yes. You can become a German citizen trough the ius soli option (more about this below), through adoption by a German citizen and through naturalization. Please note that German citizenship cannot be obtained through marriage with a German citizen, although this does increase your chances of naturalization.

4. So what is the ius soli component of German citizenship law?

Ius soli means the acquiring of a citizenship based on being born in a country's territory. Germany's ius soli law is much less far-reaching than that of the USA for example. Since 2000, a child born to foreign parents in Germany is born a German citizen if at least one of its parents has been a legal resident of Germany for at least 8 years and has a permanent residence status (§ 4 III StAG). Because these children usually also receive the citizenship(s) of their parents, they will have dual or triple citizenship. German law requires these children to decide which citizenship they want to keep after they turn 18 and before they turn 23 (§ 29 StAG). I doubt if this is in accordance with rights bestowed by the Constitution, but these cases have not reached the Supreme Court yet.

5. Does German law allow dual citizenship?

Germany disapproves of dual citizenship, but cannot completely prevent it, especially in cases where only one parent is German and the child receives two different citizenships at the moment of its birth. In these cases, both citizenships are of equal standing and nobody could be forced to give up one of them. In cases of naturalization however, Germany requires the foreigner to give up his or her original citizenship in order to obtain a German passport (§§ 9 I Nr. 1; 10 I Nr. 4 StAG). There are quite a number of exceptions to this requirement (§ 12 StAG), for example if your home country does not allow you to renounce citizenship, or if the loss of your original citizenship would result in the loss of economic rights in your home country, and for all citizens of another EU country.

6. How long do I have to live in Germany before I can get a German passport?

There is no mininum residency requirement. However, as integration into German society is one of the requirements for naturalization, most immigration authorities demand that you have lived in Germany for a few years. For the spouse of a German citizen, this requirement is usually 3 years (of which you need to have been married for the last 2 years). For other foreigners, it is anything between 3 and 8 years. After 8 years of residence, a German passport can no longer be denied, you have acquired an entitlement to it (if you fulfill the other requirements, e.g. German language skills, no criminal record, no dependency on welfare).

7. Is it possible to obtain German citizenship although I don't live in Germany?

Yes. § 14 StAG opens this possibility if you can show that you have close ties to Germany despite your residence in another country. Due to the number of questions about this possibility, there is now a special set of FAQ on naturalization from abroad.

8. How do you lose German citizenship?

There are several ways how German citizenship can be lost (§ 17 StAG): The main cases are applying for another citizenship, renouncing German citizenship if this does not render you stateless (§ 26 StAG) and adoption by a foreign parent (§ 27 StAG).

9. Are there special rules for victims of the Nazi-regime and descendants of these victims?

Yes, and this is fair because the Nazis stripped a number of Germans of their citizenship for political, racist and anti-Semitic reasons. These former German citizens or their descendants have a right to have their German citizenship reinstated (Art. 116 II GG).

10. If I don't fulfil any of the legal requirements, is there still a chance for me to get a German passport?

Do you play football very well?

Infographic German Citizenship.jpg (591221 Byte)

FAQ on naturalization in Germany from abroad

1. Can I become a German citizen without living in Germany?

Yes. There are several possibilities to do so: (1) you may already have German citizenship due to German descent, (2) re-instatement of previously lost citizenship, (3) adoption by a German citizen as a minor, and (4) naturalization in accordance with § 14 StAG. These FAQ only deal with naturalization from abroad, the other options are covered in another FAQ.

2. What are the requirements to get naturalized as a German citizen without living there?

You have to meet all the normal criteria for naturalization. Only the requirement of residence in Germany (typically between 3 and 8 years) will be waived if you can show "ties to Germany that justify your naturalization". I will cover these requirements in the following paragraphs.

3. Do I need to speak German?

Yes. This is an essential requirement, so don't even apply before you have reached at least the B1 level in German. Because you would be applying for a naturalization which you are not entitled to but which is in the discretion of the German government, a higher level of German would be even better.

4. How do I show my ties to Germany?

There are many ways to prove these ties, and the more ways in which you can show your ties, the better is your case: marriage to a German citizen, employment by a German company, longer and frequent visits to Germany, ownership of real estate in Germany for your personal use, ownership of a business in Germany, contributions to the German pension system, visits of German schools or universities, academic interest in Germany and anything else that you can think of.

5. What are the other requirements?

The same as with a naturalization within Germany: (1) You need to be able to support yourself financially without recourse to welfare. Because you would be eligible to move to and live in Germany, you need to show that you could also earn a living in Germany. (2) You shouldn't have a criminal record. Traffic tickets pose no problem. (3) You need to pass the citizenship test. It's a multiple choice test about life in Germany, the German constitution and things like the colours of the flag. You get 33 questions, of which you have to correctly answer 17 within a maximum of 60 minutes. You can take this test at a German consulate or of course on one of your visits to Germany. All the possible questions are online, so it's easy to prepare yourself.

6. Do I need to give up my existing citizenship?

Usually yes. Germany unfortunately does not believe in dual citizenship and thus requires applicants for naturalization to give up their previous citizenship. There are however plenty of exceptions, but that's the topic of a different set of FAQ.

7. When do I need to fulfil these criteria?

You need to meet these and the other criteria at the time of the application. Because you decide when you apply, you can really prepare yourself for such an application, even if it may take a couple of years. If you book a personal consultation, I will assess your situation and your personal circumstances and suggest several ways in which you can improve your chances. Of course I will also be happy to help writing your application essay.

Once you will receive German citizenship, you don't need to prove anything anymore. You can also keep German citizenship if you never take up residence in Germany. Even if you would subsequently become dependent on welfare or commit crimes, your German citizenship cannot be withdrawn.

8. How is this option connected to German citizenship by descent?

It shouldn't be connected at all, because citizenship by descent and naturalization are two completely different matters. But Germany now uses this naturalization according to § 14 StAG to rectify an old problem: Children who were born to a German mother and a non-German father before 1975 often did not receive German citizenship by descent. This obvious discrimination against the maternal line of descent is now being rectified by allowing these children to apply for naturalization under this clause. The difference to completely foreign applicants is that this group of applicants do not need to give up their primary citizenship. Also, if you have minor children they will usually be naturalized as well.

9. Do you have some special trick that you want to share with us?

Always. If you work in the Iranian nuclear programme for example and you are ready to disclose certain information to the German Intelligence Service, your application will be viewed very favourably.

FAQ on inheritance in Germany

1. Which law applies in international cases?

Germany applies the law of the citizenship of the deceased (Art. 25 I EGBGB), does however allow you to choose German law for real estate within Germany (Art. 25 II EGBGB).  

2. Who inherits under German law if I have no will?

That depends on your family situation. If you have one surviving spouse and two children for example, the spouse will receive 50 % and the children will receive 25 % each. If you are single without children, your parents will inherit 50 % each. The more complicated your family situation, the more complicated the distribution.

3. I don’t like these quotas. Can I determine who gets the house, the car, my books and the dog?

Yes, you can. You will need to write a will for this purpose.

4. And how do I write a will?

The two main forms are the notarized will (which requires a notary public of course) and the privately written will. They have equal validity.
The privately written testament has to be written by hand (no typing), signed and dated (§ 2247 BGB).

5. Can I change my will later?

Of course. You do this either by destroying it (if there is only one copy) or by writing a new one in which you include the explicit remark that this new will supersedes the old one. If you have filed your will with a notary public, you need to ask him to hand you the original testament back.

6. Can I disinherit my children / can my parents disinherit me?

German law has a system of “forced heirship” (§ 2303 BGB) which means that children, parents and the spouse are entitled to a certain minimum of the estate even if they are disinherited. So yes, you can express your wish to disinherit someone in your will, but he/she will still receive a legal minimum. Only in cases of gross misconduct on the part of the potential heir towards the deceased is it possible to exclude them completely (§ 2333 BGB).

7. If I have been disinherited, can I contest the will?

Yes, you can (§ 2078 BGB).

8. What if I don’t want to inherit?

If you don’t want to inherit (for example if the estate includes more debts than assets), you can refuse to accept the inheritance. However, you need to explicitly declare that you reject the inheritance within 6 weeks of your knowledge of the inheritance (§ 1944 I, II BGB). If you live outside of Germany, this limitation period is 6 months (§ 1944 III BGB).

9. Does Germany tax inheritance?

You bet. The tax rate depends on the amount inherited and on how closely related you were to the deceased. As a child, for example, 400.000 EUR are tax free. Above this threshold, the tax rate progresses from 7 % to 30 %. The maximum tax rate (for non-related heirs) is 50 %.

10. Who inherits if there are no relatives at all and no will has been made?

Guess who? Exactly: the state in which the deceased had his last residence will inherit everything (§ 1936 BGB).

FAQ on child custody in Germany

1. When does German child custody law apply?

German law applies whenever a child has its habitual residence in Germany. The citizenship of the child and/or the parents is irrelevant.

2. If the parents are married, who has child custody? Does the father or the mother have stronger rights?

If the parents are married, they both have joint or shared custody. Both father and mother enjoy exactly the same rights. The same applies if the parents were not married when the child was born but they get married later (§ 1626 I no. 2 BGB).

3. Can we have joint or shared custody if we are not married?

Yes. You just need to sign a declaration of shared custody (§ 1626 I no. 1 BGB). You can already sign this declaration before the birth of the child (§ 1626 b II BGB), but it needs to be signed in front of a government or consular official (§ 1626 d I BGB).

4. What are my rights as the father if I am not married to the mother and she refuses to sign a declaration of shared custody?

There has finally been a change in the child custody law in May 2013 and unmarried fathers can now petition the Family Court for an order of joint custody. This petition can only be denied if the court believes that joint custody contravenes the best interest of the child.

5. What happens in the case of a divorce?

Usually and in many cases: nothing. Unless one of the parents petitions the court for a custody decision, the court will not consider child custody. In that case, the parents will continue to have shared custody even after the separation and the divorce.

I generally recommend to try this route as it spares the child te necessity to appear in court and testify. (On a personal note, both my parents continued to have shared custody for me when they divorced, so that I never had to go attend court during their divorce. I am thankful for that.)

6. Which factors will the court consider when deciding about custody?

The court will apply two tests: (1) Is it in the interest of the child to end the shared custody of both parents and (2) which parent's custody is in the better interest of the child?

If there is any chance that the parents can still cooperate (as parents, not as spouses) in the future, the court may not wish to award custody to one of them at all, but will instead maintain shared custody. This is also an important factor to keep in mind if you find yourself in a custody dispute. If you know that you are not likely to win the direct contest in the eyes of the court (typically if you are the father of a very young child), you can petition for shared custody being maintained. If you are very cooperative, the court will have a hard time taking away custody from you completely.

If the court needs to make a decision between both parents, it will consider who is better suited to take care of the child, who has been doing this for the past, who has more time (hence the preference for non-working mothers in many cases) and who will be more cooperative towards the other parent (especially regarding visitation and contact and information). With increasing age of the child, the child's wishes will also be considered.

7. What is the "Jugendamt"?

The Jugendamt is not part of the court system, but a government agency supposed to take care of children and teenagers if their welfare is in danger or their interests are at stake. It can be compared to CAFCASS in the UK or Child & Youth Services in other countries.

In a custody dispute, the court will always involve the Jugendamt and ask them to speak to the parents and the children, make house calls and write up a report with recommendations. While these recommendations are not binding, in reality the judge will go with them. In light of this it is especially sad that the Jugendamt has a very bad track record when it comes to dealing with parents who don't live in Germany. I have seen many cases myself in which the Jugendamt didn't even bother to contact the foreign parent.

8. Can the government take away my children?

In extreme cases, yes. (§§ 1666, 1666 a BGB). If the government thinks that your child's welfare is in danger, it can order the removal of your child from the family as a last resort. However, you can of course appeal against this in court. Very often, these decisions by the Jugendamt are overturned by the Family Court because the petitioner can show that the government did not exhaust all other possible options before taking this drastic measure.

9. What happens once my child turns 18?

Once your child turns 18, it is no longer a child in the legal sense. Custody law no longer applies. Your child is a free person.

10. I don't like all of this. Can I just take my child and leave Germany?

That depends on whether you have sole custody and/or if the other parent agrees. If both parents agree, they can always leave Germany with their child or send the child away. If the other parent does not agree, you have to be very careful to not commit an international child abduction.

FAQ on filing a constitutional complaint in Germany

1. I feel that my human rights have been violated in or by Germany. Can I seek redress against this?

Yes. Everyone can file a constitutional complaint ("Verfassungsbeschwerde") with the Supreme Court ("Bundesverfassungsgericht") if the appellant believes and argues that his/her fundamental rights have been violated by an act of the German executive, by a German court order or by a German act of parliament.

2. What are these fundamental rights that I have in Germany?

They are all the fundamental rights enumerated in Art. 1 through 19 of the Constitution ("Grundgesetz" [GG]) as well as the rights mentioned in Art. 20 IV, 33, 38, 101, 103 and 104 GG.

Some of these, like freedom of assembly (Art. 8 I GG), freedom of association (Art. 9 I GG), freedom of movement (Art. 11 I GG), the protection against removal of German citizenship and others, are citizens' rights and are only applicable if you have German citizenship.

Other rights, like human dignity (Art. 1 I GG), equal protection (Art. 3 I), equality between men and women (Art. 3 II), protection from discrimination (Art. 3 III), freedom of religion (Art. 4 I), free speech (Art. 5 I) and many others, are human rights and you can also invoke them if you are not a German citizen.

3. How hard or easy is it to file such a constitutional complaint?

Theoretically it's very easy. You don't need to be represented by a lawyer, you can write the complaint yourself and the court charges no fees (except in frivolous cases).

What is hard however is to file a successful complaint. The Supreme Court receives thousands of constitutional complaints every year. In 2011, only 1.62 % of these were successful.

4. Why are the chances of success so small?

For one, many of the constitutional complaints don't have any merit. If you are thinking of not paying taxes and and want to base this on "freedom of religion" (Art. 4 I GG) because you founded your own cult which does not believe in paying taxes, don't waste your time bothering the court. If you have been convicted of a crime and are appealing your prison sentence for violation of your "freedom of movement" (Art. 11 I GG), save yourself the time.

Second, there are a whole number of formal requirements, some of them easier, some of them quite complicated, that need to be met in order for your complaint to even qualify for the judges to read through it.

5. What are the formal requirements for the constitutional complaint?

There are plenty and I can't go into all of them here. I will list the ones that usually cause the complaints to fail or that cause me to dissuade a client from filing a constitutional complaint:

(a) You can only seek remedy against acts of the state. If your human rights have been violated by a company, by a private individual or by your spouse, you have to address this to the civil courts.

(b) The constitutional complaint is the last resort. You need to have exhausted all other remedies and appeals before addressing the Supreme Court. If you are not happy with a verdict of a Family Court or a Criminal Court, you need to file the regular appeal(s) first. If you don't like that the police ordered you to do something, you need to sue them in the Administrative Court first, then go through the appeals and then you can finally address the Supreme Court. Because of this, the Supreme Court usually hears cases years after the underlying situation actually occurred.

(c) The constitutional complaint needs to include all the necessary information and documents to enable the Supreme Court to decide the case. You need to point out which of your constitutional rights has or have been violated and you need to explain how they have been violated. You need to show what attempts you have made in the lower courts to seek redress against this problem.

6. Is there a deadline for filing the constitutional complaint?

Yes. It is one month from the time of the last court order, usually the denial of your last appeal. One month is a short time to put together a solid and well-written constitutional complaint, so you better contact me or another lawyer as soon as possible.

7. Is the Supreme Court another Appeals Court?

No. Absolutely not. The Supreme Court only looks at whether your constitutional rights have been violated. It does not supplement the lower courts' decisions with its own decision. The Supreme Court may think that the lower courts were wrong in evaluating the facts, that they miscalculated damages, that a sentence was too harsh, that a decision should have been issued differently from the way it was, but all of this is irrelevant, as long as it does not touch on your constitutional rights.

It is therefore imperative to limit the constitutional complaint to matters constitutional and not attempt to retry the whole case once more.

8. Are there any other constitutional complaints in Germany?

Yes. Germany is a Federal Republic and thus each of the 16 states has its own Constitutional or Supreme Court. 10 of these states allow constitutional complaints. Baden-Württemberg just introduced this possibility and it will be available from April 2013 on. Before the State Supreme Court, you can only claim your rights under the State Constitution. Most of the basic rights are however very similar to those in the Federal Constitution.

9. Can I go to the European Court of Human Rights instead?

It depends on the specific case, but usually no. Or more presicely: not yet. The European Court of Human Rights (ECtHR) requires that you have exhausted all possible remedies in national law, including the German constitutional complaint. Thus, if you do not address the German Supreme Court before and await its decision, your human rights complaint will be dismissed by the ECtHR in Strasbourg on formal grounds.

10. Can you help me with my case?

Sure. I can determine if your case has any merits and if you then decide to go ahead, I'll be happy to write the constitutional complaint for you.

FAQ on freedom of movement within the EU

1. What is the right to freedom of movement within the European Union?

Broadly speaking, the citizen of any EU member state can move to any other EU member state without a visa, a residence permit or any other formality being required. It's as easy, and in some cases easier than, a move within a country's borders.

2. Is this what people call Schengen?

No, these are two completely different things. Schengen is a system for the abolishment of physical borders and for a single tourist visa for 26 countries. The UK, Ireland, Bulgaria, Romania, Croatia, Cyprus are not part of Schengen (but with the exception of the UK and Ireland will be sooner or later) but are bound by the EU freedom of movement rules. Even more confusingly, some countries which are not in the EU are part of Schengen and the freedom of movement rules also extend to them (Norway, Liechtenstein, Iceland). The situation in Switzerland is even more complicated, but please ask a Swiss lawyer about that.

3. Are you allowed to work or study in any other EU country?

Yes,  freedom of movement not only means that you can travel, but you can settle in any EU country. You can take up employment, you can study, you can set up a business, you can retire. You can pretty much do anything that you can do in your home country, with exceptions on some government jobs which may be restricted to nationals of that country and on voting in national elections.

4. Is there a limit as to how long you can stay in another EU country?

You are always allowed up to three months in any EU country without any further conditions. For stays beyond three months, you must be exercising one of your EU Treaty rights, i.e. being in employment, running a business, studying or being self-sufficient. This is a gross simplification, but as long as you don't apply for welfare, you are safe. In reality, the three-month rule is not enforced, also because you could leave the country and come back the next day or you can always say that you just arrived yesterday because your passport doesn't get stamped if you cross the border as an EU citizen. - From my personal experience, nobody cares. I have been living in six different EU countries and never had any kind of registration, paperwork, nothing. It was never a problem.

5. How does this help me as a non-EU citizen?

Now we're getting to the interesting part! EC directive 2004/38 extends the freedom of movement rights to family members of EU citizens. That means that if you are Afghan/Brazilian/Chinese or anything else and your spouse is an EU citizen, then you can live with them in the EU if they are exercising their freedom of movement rights, i.e. if they are not living in their country of citizenship.

6. That's great! How do I get this EU freedom of movement visa?

It gets even better: you don't need any visa. Freedom of movement is a right which you have by virtue of law and it does not depend on any EU member state issuing a visa or a residence permit. When travelling or crossing borders together with your EU spouse, you just need to bring your marriage certificate and you'll be able to enter the EU or cross borders within the EU.

If you want, you can however apply for a residence card which will show that you have the right to reside in that particular country. This is NO legal requirement and you have the right to stay BEFORE you apply or obtain such a residence card. The practical use of the card is for employers (who often don't understand immigration law) and to show to border guards (dito) and airline staff (dito).

7. Wait. I heard that some countries have restrictions for the immigration of spouses.

Yes, Germany for example requires a minimum knowledge of German, the UK requires a certain income level. But these national rules do NOT apply to other EU citizens and their spouses because national law cannot overrule EU law. This leads to the paradoxical situation that it is easier to migrate to an EU country if you are married to the citizen of another country than to a citizen of that country. For example: If you are a non-EU citizen and you get married to a German and want to move to Germany, you will need to prove minimum language skills in German and you will need a visa; but if you marry a French person who lives in Germany, you can move to Germany without a visa and without any language skills because you fall under EU law.

8. I have the feeling that you were about to suggest a trick.

Of course! Thanks to the freedom of movement in the EU and the fact that there are no more border controls between most countries, you can bypass national immigration laws. Let's say we have a German guy who gets married to a woman from Bangladesh, but she cannot get a German visa. Easy: the German husband moves 5 km across the border to France, Poland or any other neighbouring EU country, and the wife can join him right away. Officially they will live in France, Poland etc. but as there are no border controls, nobody will know how much time they spend where.

9. You keep talking about spouses, but does this also relate to other family members?

Yes, it does. Other groups of family members who may benefit from the freedom of movement in the EU are: same-sex partners, unmarried long-term partners, children, dependent parents, including dependent children and parents of the non-EU partner. You may notice that this is the perfect loophole for circumventing strict national laws against family reunion.

10. And all these rules are the same in every EU country, so it doesn't matter if my spouse is from Germany or from Croatia?

No. That would be too simple. EC Directive 2004/38 needs to be transposed into national law and this leads to slightly different results in each of the 28 EU member states. A particular problem arises for same-sex partners because some EU member states haven't recognized such partnerships (yet).

Usually, the country of citizenship of your spouse or sponsor is not as relevant as the country in which you wish to settle. For Croatian citizens however (and thus for non-EU family members of Croatian citizens), some countries (for example Germany) have opted to use a phasing-in which limits access to the labour market before July 2015. There are however no limits on moving as a student or on setting up a business or being self-employed, so that these limits can be easily circumvented.

Because this is a very complicated area of the law, I ask you to restrict your questions in the comment section to general questions which might be of interest to others. I won't be able to solve specific, complicated cases without looking at the details and not without charging. Please feel free to contact me directly and be as precise as possible in the description of your case. I charge 250 EUR for a detailed consultation. And remember (I have to mention this explicitly because it happens almost every day), I cannot answer questions if you write to me saying "I am an EU citizen and my wife is a non-EU citizen". I need to know exactly all types of citizenship involved.

FAQ on working with me as your lawyer

1. Is it true that you are on sabbatical?

Yes. I took a break from lawyering in August 2009 after having worked as a lawyer for 7 years. I wanted to pursue some of my other interests and to travel more. I have since even found the time to complete an MA in philosophy.

2. When will you be back?

Probably not for a few more years. If you follow my blog, you will be the first to know once it happens.

3. Is there no chance you can help me with my question?

The point of my sabbatical is to work less, so I cannot reply to all the requests I continue to receive.

But there are two ways you can try to tap my knowledge: I answer some questions for free on All Experts (see question no. 4) and sometimes I might do some extra work for really nice people (see question no. 6 et seq.).

4. What do I have to do to get my question answered for free?

I am one of the experts for German Law on All Experts. You go to this website: www.allexperts.com/ep/1364-118581/German-Law/Andreas-Moser.htm and click on "Ask a Question".

Please note that I answer a maximum of one or two questions per day. If you fail to read through these FAQs or my previously answered questions on All Experts and ask a very basic or repetitive question, I might decline to answer your question. I also won't answer questions marked as "private" because the purpose of that website is to educate the public and others who might be in a similar situation to yours.

5. How can I thank you adequately for this free service?

I have a wishlist of books (and another one for German language titles) and I would appreciate if you choose and mail me one of the books. Getting quality legal advice for free should be worth such a relatively small effort, right?

6. Would you also be available for more individual questions or more legal help?

I might. From time to time, I will accept a case on a freelance basis.

Please note that I am currently not admitted to the bar as an attorney, so I cannot officially represent you in most court cases. I can of course give general advice, strategic advice, draft letters and briefs, perform legal research and legal translations.

7. Do you charge for this?

Of course. For an initial consultation, whether by phone, e-mail or in person, I charge 200 € or the equivalent in your currency. The easiest way to pay is through PayPal.

The consultation will be thorough and in-depth. It will draw not only on my legal knowledge but also on my vast trial and strategic experience. I will set aside several hours of my time to answer all of your questions.

If we decide to proceed together after the initial consultation, we will agree on the fees for that.

8. How can I contact you?

The best way is to send an e-mail to moser@moser-law.com and provide a detailed account of your situation, preferably pointing out that you have already read these FAQ and haven't found the answer therein. You can also contact me on Skype at "andreas_lawyer".

9. Can you recommend any other lawyer in Germany?

No, unfortunately not. But I have put together the 10 ultimate guidelines for finding the best lawyer.

(C) Andreas Moser. www-moser-law.com. moser@moser-law.com.