Navigation:
◾ Divorcing as an EU citizen or a third-country citizen
◾ Divorce or separation without children
◾ Divorce or separation with children
◾ When abuse or violence is involved
◾ How to split amicably in Denmark
Disclaimer: This article is compiled to the best of our knowledge at the time of publication, with input from practicing lawyers in Denmark. It is intended to provide a basis of information, but does not constitute legal advice. Please seek advice from your own lawyer. The Danish government and courts are the sole and final source for current law and legal decisions.
On the blog for her psychotherapy practice The Good Expat Life, Danish psychotherapist Henriette Johnsen described how it felt to be a “stuck parent” while in the process of divorcing outside of her home country. “The practical struggles I faced were many and often surreal; and I experienced profound loneliness, anxiety, lack of belonging and at times also found life somewhat meaningless,” she writes.
After international marriages break down, many “trailing spouses” are treated as “dependents,” writes Henriette. In other words, internationals are often dependent on their partners to understand the host culture. During a split, they must navigate an unfamiliar legal system to divide assets, establish child custody, and settle their own immigration and residency status.
Although Henriette faced this situation in the United Kingdom, we’ve seen many internationals post or comment in Facebook groups for Danish residents about their own confusing and frustrating experiences. Some are married to or living with a Dane they share children with; others are partnered with a Dane and don’t have children. Often, the internationals have formed connections in Denmark and they fear having to leave now that their relationship is ending.
Then there is a third group, who came to Denmark as accompanying spouses of an international who secured a job here. For this group, it is worth contacting an immigration lawyer to explore your options. When there are children involved and the goal is for them to remain in Denmark close to the employed parent, the accompanying spouse may obtain a residence permit on the basis of participating in the care and upbringing of their children. This is connected with the widely protected right to a family life in proximity to one’s children (discussed more below). When the couple doesn’t have children, the accompanying spouse must pursue residence in Denmark independently, for example, based on employment.
But for those married to or living with a Dane, things can get more complex, especially for those who do not have permanent residence independently. Posters in international Facebook groups have described a variety of anxiety-provoking scenarios. One writes that they were denied Danish residency after a divorce and asked to leave within 14 days. Another says they lived and worked in Denmark for eight years, passed their language exams, and built a large support system, but were told after divorce that they did not have sufficient attachments to stay in Denmark. (LWID has not verified these statements.)
Sometimes, separating from your partner is unavoidable. But the first step is to know your rights. LWID has interviewed two attorneys who work with clients in Danish-international partnerships, including those from the European Union (EU) and outside of it (legally referred to as third-country citizens), as well as internationals who have and don’t have children.
Let’s meet our experts:
The quotes in this article have been condensed and lightly edited for clarity.
Louise Bomholtz, attorney at BFA Law: “I’m a family lawyer and have worked with international cases for 15-20 years. Many of my clients get married to someone outside of Denmark and/or have assets outside of Denmark. I also work on child abduction cases,” which occur when an international partner unilaterally leaves Denmark with their child after separation.
Michael Møller Nielsen, attorney and partner at Lund Elmer Sandager: “I’m an employment lawyer who does corporate immigration, which means helping corporations with their cross-border activities and workforce exchange. This includes family reunification and cross-border migration, especially for third-country citizens. For over 10 years, I’ve also been part of the panel of experts for Danes Worldwide, an association of Danes living abroad.”
Getting divorced in Denmark
How do international clients usually feel when they come to you to discuss separation?
LOUISE: They are often scared about how it will affect their residency in Denmark. They’re also concerned about children and finances. It’s very difficult for internationals to understand the system, their rights, and what kind of evidence is needed, if any — so I guide them.
Denmark is bound by human rights laws, like the UN Convention on the Rights of the Child, and EU laws, like the rights to free movement and residence for EU residents. However, it handles parts of the law, like matrimonial property and child custody, differently.
Do I need to be separated for a certain amount of time before I can apply for divorce in Denmark?
LOUISE: Not anymore. If both parties agree, they can apply for a “no-fault” divorce directly. If one party disagrees, you may have to go through a separation, and the courts will make a decision. Even in this situation, you may still be able to get a direct divorce when there is adultery or violence.
What does the divorce process typically look like?
LOUISE: In Denmark, divorcing couples have three separate cases. There’s the divorce or separation process, where you need to agree on whether or not spousal support should be paid and for how long, and who will take over the rental property you live in.
This is different from the division of assets, which is handled by the probate court and can be started as soon as you have applied for a divorce or separation. Again, if you disagree on these things, the court will make a decision.
Finally, when there are children involved, there is a process to decide child custody.
My clients sometimes have multiple lawyers. Internationals may also want to have a penalty lawyer [for cases involving intimate partner violence; see section below] and an immigration lawyer, to help with residency.
When couples consult me before the divorce, I ask them to speak with an immigration lawyer first. If the couple has children, sometimes one parent is willing to pay more in order to secure the other parent’s residency in Denmark, and they agree to a different financial split based on what is in the children’s best interest.
I live in Denmark and cohabit with/am married to a Dane. Do I have to get divorced in Denmark?
LOUISE: Internationals in Denmark who have a link to another country should be aware of their options. It doesn’t matter where you were married. You may be able to start the process based on the country of your citizenship or based on your domicile [i.e. if your permanent address is in another country].
Where you decide to start the divorce process can really change your financial situation. In Denmark, the rules about finances are so firm that I rarely go to court about it.
You can also decide to do a mediation process, which can be easier than going through the Danish system. If you can’t agree on mediation, start the divorce process quickly because the system takes time.
Divorcing as an EU citizen or a third-country citizen
How does my EU/non-EU nationality affect me legally?
MICHAEL: If you’re from the EU, you are subject to the EU’s rights to free movement and residence, which means you have a right to stay without restrictions within the entire EU area. There is also the European Convention on Human Rights, which also protects the rights to a family life, to which all European Union member states agree.
It’s more complicated if you’re a third-country citizen. If you are here on a family reunification visa, that may allow you to work in Denmark. But if you are no longer married to the person that you became reunified with or migrated to Denmark with, that family reunification visa will lapse.
If you’re a third-country citizen with kids under the age of 18, in most cases, you would have a derived right to be with your children [assuming your children have a Danish parent and/or Danish nationality]. If you couldn’t be close to your dependent children, it would be a violation of your right to a family life, so to speak.
LWID: Remember, this is the expectation based on legal precedent, but every case is different. Please consult your lawyer.
Divorce or separation without children
I want to separate/divorce from my Danish partner, and we don’t have children. Can I stay in Denmark?
LOUISE: [Without the EU right to free movement,] if there are no children and your permission was based on your marriage, your case to stay in Denmark is more difficult.LWID: Learn how to start your separation/divorce process in Denmark at the website for Familieretshuset (the family courts). If you haven’t received a visa to stay in Denmark, you don’t have a CPR number, and/or the EU right to free movement doesn’t apply to you, you should explore your options with an immigration lawyer. If you don’t have MitID, you may need lawyers to sign documents for you.
Divorce or separation with children
I have children with my Danish partner — how does that affect the separation or divorce process?
LOUISE: Dividing your assets can be easier than child custody, which is usually quite emotional. It’s always a question of where you’re going to live with the children and how much the other parent should see them. But this should be about what’s in the child’s best interest.
If you’re an international with a small network in Denmark, you may consider going to your home country to be with family and friends. But this can cause issues if there’s a child-related residency case [including the residency rights of both the children and the international partner].
LWID: As noted above, people with Danish residency and a child in Denmark are typically subject to the right to a family life, enabling them to stay and/or have visitation with their child in Denmark. If you have a child with a Dane either outside of Denmark or in Denmark, but before obtaining Danish residency, you should explore your options with a lawyer.
MICHAEL: Your case may be assessed on factors like your derived right to a family life in close proximity with your child and your intention to participate in the care and upbringing of your child. Here, the Danish authorities would also be guided by the principles laid out in the European Convention on Human Rights as well as EU law, like the rights to free movement and residence, which are integrated parts of Danish legislation.
How does my child’s citizenship affect my residence in Denmark?
MICHAEL: If you give birth to a child, regardless of where you are in the world, I always recommend that you obtain a birth certificate and maintain it. The authorities consider it an important document in citizenship cases. Children born in Denmark do not automatically get Danish citizenship, but they are typically registered for this when they have a Danish parent. If a child is not a Danish citizen [or was born outside of Denmark], there may be an issue. But the child of a Danish citizen who lives in Denmark could obtain a visa with special conditions.
[Alongside your right to a family life], the law also says that it’s your child’s right to have both parents, which is also legally protected in Denmark. As a result, a fallback rule may allow you to acquire the aforementioned visa under the assumption of being affiliated to a EU citizen, or someone who enjoys the EU right of free movement.
If the child is over 18 and a legal adult, there is an assumption that there isn’t that dependent relationship [and these rules may not apply].
I’m a third-country citizen who isn’t married to the Danish co-parent of my child. How does this affect separation and child custody?
MICHAEL: It’s a similar situation. For non-married couples with children, the authorities would consider: “Are you in a marriage-like relationship?” The rule of thumb [for cohabiting partners] is to share a common household for at least 18 months.
In your experience, should it be easier for me as an international partner with a Danish child under 18 years old to maintain residency in Denmark?
MICHAEL: Yes, I’d expect there to be a protected right to a family life in that situation.
But when the child is 18 and over, that is not a given?
MICHAEL: No. In that case, the third-country citizen could try to apply for a worker permit, if you have a job in Denmark.
Are there any reasons why an international parent (who at one point had the right to reside in Denmark) would not be allowed to stay in Denmark if their child is under 18?
MICHAEL: Yes. This may happen, for instance, if you’ve committed serious crimes or are convicted for them. However, you would still have the right to family life, because the child also has a right to both its parents in the near vicinity.
Let’s say that I don’t get the right to stay in Denmark after my divorce is finalized. What does the law say about how much time I have to leave Denmark?
MICHAEL: When we speak to the authorities, they say that if your residence permit lapses, you will be given a “reasonable” time period to leave Denmark. This is not something that is founded on the law and there is no set time period. The time they give you depends on factors like how long you’ve been in Denmark and how challenging it will be to re-establish yourself outside of Denmark; for example, if you don’t have relations outside the country.
If you are in Denmark on a procedural stay while your case is being handled, but the case is rejected, then it will [likely] be a shorter period.
When abuse or violence is involved
LWID: Married or cohabiting partners can experience various kinds of abuse, including emotional, psychological, physical, sexual, and financial abuse. Both Louise and Michael recommend documenting all forms of abuse and filing charges to create a clear record. If you suspect you are being abused, here are some questions to ask yourself. In Denmark, you can reach out to Danner, an organization that works with survivors of intimate partner violence.
What recommendations do you have for leaving an abusive partnership?
LOUISE: First, you need to take care of yourself and find an experienced professional to guide you through it.
[If you experience abuse,] I recommend considering if you need to press charges or go to the police. Crisis centers should be a last resort if you can’t find another safe place.
[In cases of physical abuse,] go to the hospital and document your bruises. There are many cases when [an abused partner of either gender] states their partner has been violent, but they can’t document it, so it’s difficult to prove. The courts may ask you, “Why didn’t you end the marriage when that started? Why didn’t you go to the police?”
These situations do not impact the division of assets, but it could impact child custody. Abuse sometimes occurs only between the two partners; [in other words,] you can be a good father or mother, but not a good partner.
Are crisis centers an option?
LOUISE: When couples have high conflict, international parents will sometimes go to a crisis center because they are scared. When they bring their children, they prevent them from seeing their other parent, and this damages their relationship with that parent [during the time that the case is pending].
But if we get the partners to meet early in the separation or divorce process, we can establish quickly that the child should see both parents, even if it’s under supervision.
How to split amicably in Denmark
How can I end my partnership in the calmest possible way? In other words, what does a successful split look like, in your experience?
LOUISE: Do mediation if you can. I think couples need to get to the core of what they’re afraid of. When people understand the law and their options, it’s easier for them to sit down together with a lawyer and make solid agreements concerning both children and finances.
MICHAEL: Remember, relationships break down every day. If you have chosen to put children on this green earth, that’s greater than your relationship. You are the grown-ups. Make sure to do what benefits the child and set a good example. Your children should have the option to have both parents in their near vicinity.
What’s the best place to begin?
MICHAEL: Don’t be shy about getting a legal consultation. Ask, “What can I do in my position?” Your residence permit may not be the first thing on your mind when you’re discussing the estate or child custody, but] ask your lawyer what you should consider as a third-country citizen.
Further resources
Mentioned in the article:
◾ Louise Bomholtz, an attorney at BFA Law specializing in family and inheritance law.
◾ Michael Møller Nielsen, an attorney and partner at Lund Elmer Sandager who specializes in employment law and corporate immigration, including cases related to family reunification.
◾ Henriette Johnsen, psychotherapist at The Good Expat Life.
Danish organizations:
◾ Familieretshuset, i.e. the family courts, a division of the Statsforvaltningen or State Administration. Learn how to start your international separation/divorce process here.
◾ Danner, an organization that works with survivors of intimate partner violence.
◾ Udlændingeretshjælpen, an Aalborg-based organization that offers free legal advice specific to internationals, including immigration issues, via phone on Thursdays only.
◾ Københavns Retshjælp and Vesterbro Retshjælp, two long-standing, Copenhagen-based organizations that offer free legal advice via phone (have your yellow card and MitID ready).
◾ Spørg en advokat (“Ask a lawyer”), a private Facebook group.
