Accused of a marriage of convenience: how it is dismantled
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Art. 8.3.b) of Royal Decree 240/2007 requires proof of the existence of the family bond, marriage or registered partnership, and that is proved by the registry certificate. Whoever claims the marriage is a sham asserts a different fact and must give reasons for it. The refusal is fought within one month by a reposicion or two months before the court.
You married a citizen of the Union, filed the application for the family member's card, and you were called in separately for an interview. Questions about the colour of the curtains, the brand of shampoo, the date of the first date. Some answers did not match. Months later the refusal arrives: indications of a marriage of convenience are found. Not a word about the three years you have lived in the same flat, the joint account, or the trips with her family.
The case, in five lines
- What is brought
- Submissions on the file and, once the refusal is issued, a reposicion appeal or a contencioso-administrativo claim seeking annulment and recognition of the right to the residence card as a family member of a Union citizen.
- Before which court
- The Oficina de Extranjeros (the provincial immigration office) handles and decides it; the court challenge is heard by the sección de lo Contencioso-Administrativo del Tribunal de Instancia (the administrative-law section of the first-instance court).
- Deadline
- One month for the reposicion where the decision is express, under art. 124.1 of Law 39/2015, and two months for the court claim under art. 46.1 LJCA, running from the day after notification.
- Who can bring it
- The foreign family member who applied for the card under art. 8.1 of Royal Decree 240/2007. The spouse who is a Union citizen has a direct interest in the file, and their statement and documents are central pieces.
- Financial risk
- While the matter is argued, your documentary position is left in the air, and the proceedings may end in an order to pay costs if dismissed. A refusal for simulation also stays on the file and reappears in later applications, so it is worth fighting rather than going around it.
What the rule asks you to prove is the bond, not affection
Art. 8.3 of Royal Decree 240/2007 lists exhaustively what must be filed: the applicant's valid passport, documents proving the existence of the family bond, marriage or registered partnership giving entitlement to the card, the registration certificate of the family member who is a Union citizen, proof of dependency where art. 2 requires it, and three photographs.
Letter b) is the key to the case, because it requires proof of the existence of the bond. A validly celebrated and registered marriage exists, and its existence is shown by the registry certificate, not by two memories agreeing on what was eaten one Tuesday. That is the starting point to which the argument must be returned when the decision drifts elsewhere.
The defence grows from there. Once the existence of the bond is proved on the terms of art. 8.3.b), whoever maintains that the marriage is a sham is not arguing about a documentary requirement: they are asserting a new and different fact, simulation, and a decision that treats it as established has to explain which specific elements of the file it rests on.
The interview record is an indication, and indications are rebutted
Separate interviews produce discrepancies even between couples married for twenty years, because household memory is not symmetrical: one keeps the bills and the other the children's diary. So the first step is to obtain a copy of the record and read the actual questions, not the summary the decision makes of them, which tends to group as contradictions what were merely imprecise answers.
Then a body of documents is set against it. Joint padrón with a dated history, tenancy agreement or deed in both names, utilities in your names, a joint bank account with movements, policies naming the other as beneficiary, travel bookings, official correspondence to the same address. Each document carries a date, and together they map out a shared life that no interview alone can contradict.
Personal evidence completes the picture. Statements from neighbours, the landlord, work colleagues and the family of the spouse who is a Union citizen, with verifiable facts rather than polite formulas. The classic administrative reference in this field is the Instruction of the Dirección General de los Registros y del Notariado of 31 January 2006 on marriages of convenience, and the European framework is Directive 2004/38/EC, whose art. 35 is routinely invoked.
The filing receipt protects you while the file is decided
Art. 8.2 of Royal Decree 240/2007 requires that, once the application is filed, a receipt evidencing the filing be handed over immediately, and it states that the receipt is sufficient to prove lawful stay until the card is issued. It is not a courtesy slip: it is the document that supports your position while the authority decides.
The same paragraph adds a point that is often forgotten: holding the receipt may not be made a precondition for exercising other rights or dealing with the authorities, provided the beneficiary can prove their position by any other means of proof. It is the answer to anyone who demands the receipt as though it were the only possible key.
Three months to decide, and a card with retroactive effect
Art. 8.4 of Royal Decree 240/2007 lays down two rules that almost nobody invokes and that change the value of the case. The first: the card must be issued within the three months following the filing of the application. A file that has been open for eight months because simulation is suspected is breaching that period, and it is worth putting that in writing on the file itself.
The second is more powerful still: a favourable decision has retroactive effect, the residence position being treated as valid from the proven date of entry into Spain as a family member of a Union citizen. That is, if the right is recognised in the end, the time lost on the file and in court does not disappear: it is recovered as valid residence from that date.
Art. 8.5 completes the effect, since the card is valid for five years from the date of issue, or for the expected period of residence of the Union citizen if that is shorter than five years. Knowing this orders the strategy: what is being fought for is not a yearly document but a long residence title with seniority recovered.
Once the card is refused, the clock starts the next day
Art. 123.1 of Law 39/2015 allows an optional reposicion appeal before the same authority or a direct challenge before the contencioso-administrativo courts, and its paragraph 2 bars going to court while the reposicion is undecided or not yet deemed refused. Art. 124.1 gives one month for the reposicion where the act is express, and art. 46.1 LJCA two months for the court claim.
Suspension is requested alongside the appeal. Art. 117.1 of Law 39/2015 recalls that appealing does not suspend enforcement, and its paragraph 2 allows suspension where enforcement could cause harm that is impossible or hard to repair. Its paragraph 3 adds that enforcement is deemed suspended if, within a month of the request's entry, no express decision is issued and notified.
Once in court, art. 129.1 LJCA allows any measures securing the effectiveness of the judgment to be sought at any stage, and art. 130.1 sets the test for granting them: after a reasoned assessment of all competing interests, only where enforcement could deprive the claim of its legitimate purpose. That is exactly what happens when a couple ends up separated by countries.
How we run the case, step by step
- 1
Obtain a copy of the interview record
We request the complete file, with the actual questions and answers of both of you and the internal reports. Without the record there is no way to know which contradiction is really alleged, and the decision offers only a summary that nearly always lumps them together.
- 2
Check art. 8.3 document by document
What was filed is checked against the list in art. 8.3 of Royal Decree 240/2007: passport, proof of the bond, the Union citizen's registration certificate and, where relevant, proof of dependency. If everything was there, the refusal is not a documentary one.
- 3
Build the file on your shared life
The joint padrón, housing contract, utilities, joint account, trips and correspondence to the same address are arranged in chronological order, with continuous dates. The strength lies not in one striking document but in a sequence that cannot be improvised.
- 4
Make submissions before the decision is issued
If the file is still open, all that material goes into it with a written submission, so that the decision is obliged to address each element and cannot simply say that indications of simulation are found.
- 5
Appeal with a request for suspension
Once refusal is issued, we choose between the reposicion under art. 124.1 of Law 39/2015 and the claim under art. 46.1 LJCA, and we enclose the request for suspension under art. 117.2, with its filing receipt to start the month in art. 117.3.
- 6
Claim retroactivity once you win
Once the right is recognised, we require art. 8.4 of Royal Decree 240/2007 to be applied, so that residence is treated as valid from the proven date of entry into Spain as a family member of a Union citizen, and not from the date of judgment.
The evidence that decides the case
- The full marriage certificate with its registration and date, which is the proof of the bond required by art. 8.3.b) of Royal Decree 240/2007.
- The registration certificate of the spouse who is a Union citizen, expressly required by art. 8.3.c).
- The joint padrón certificate with its history, placing both of you at the same address over time.
- The tenancy agreement or deed in both names, the utilities in your names and the movements of the joint account.
- Travel bookings, dated photographs and messages covering the period before and after the marriage.
- The verbatim interview record, to check whether the contradictions exist or are imprecisions grouped together in the summary.
What closes the door
- Going into the interview without having gone over dates, addresses and basic facts together, trusting that living together will speak for itself.
- Filing only photographs. Without a joint padrón, housing contract or joint account movements, images are dismissed as evidence of a staged relationship.
- Not requesting a copy of the interview record, and ending up appealing against the summary in the decision instead of against what was actually asked and answered.
- Letting the month in art. 124.1 of Law 39/2015 or the two months in art. 46.1 LJCA pass, so the refusal for simulation becomes final and resurfaces later.
- Giving up the family member's card and looking for another residence route, leaving on the file a refusal for simulation that was never fought.
The law that applies
- Art. 8.1 y 8.2 del RD 240/2007. It recognises the right of non-EU family members of a Union citizen, when accompanying or joining them, to reside for more than three months with the residence card as a family member of a Union citizen, and requires immediate delivery of a filing receipt that suffices to prove lawful stay until the card is issued, without holding it being required as a precondition for exercising other rights where the position can be proved by other means. BOE-A-2007-4184
- Art. 8.3 del RD 240/2007. It lists the documents required: the applicant's valid passport, documents proving the existence of the family bond, marriage or registered partnership giving entitlement to the card, the registration certificate of the family member who is a Union citizen, proof of dependency where art. 2 requires it, and three photographs. BOE-A-2007-4184
- Art. 8.4 y 8.5 del RD 240/2007. It requires the card to be issued within the three months following the application, gives a favourable decision retroactive effect, with residence valid from the proven date of entry into Spain as a family member of a Union citizen, and sets the card's validity at five years from issue, or the expected period of residence of the Union citizen where that is shorter. BOE-A-2007-4184
- Arts. 123 y 124 de la Ley 39/2015. They allow an optional reposicion appeal before the same authority or a direct challenge before the contencioso-administrativo courts, bar going to court while the reposicion is undecided or not yet deemed refused, and set one month to file it where the act is express and one month for it to be decided. BOE-A-2015-10565
- Art. 117 de la Ley 39/2015. It provides that appealing does not suspend enforcement, allows suspension where enforcement could cause harm that is impossible or hard to repair, and deems enforcement suspended if a month passes from the request's entry with no express decision issued and notified. BOE-A-2015-10565
- Arts. 129 y 130 LJCA. They allow any measures securing the effectiveness of the judgment to be sought at any stage of the proceedings, and permit them only where, after a reasoned assessment of all competing interests, enforcement could deprive the claim of its legitimate purpose. BOE-A-1998-16718
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
Do I have to prove that we love each other?
What art. 8.3.b) of Royal Decree 240/2007 requires to be proved is the existence of the family bond, marriage or registered partnership giving entitlement to the card, and that is shown by the registry certificate. To maintain that a validly registered marriage is a sham is to assert an added fact, and a decision treating it as established has to say which elements of the file it rests on.
Which documents does the rule actually require?
Art. 8.3 of Royal Decree 240/2007 lists them: the applicant's valid passport, documents proving the family bond, marriage or registered partnership, the registration certificate of the family member who is a Union citizen, proof of dependency in the cases art. 2 requires, and three photographs. Checking that everything was filed shows that the refusal is not answering a documentary defect.
What is my position while we wait for the card?
Art. 8.2 of Royal Decree 240/2007 requires a receipt evidencing the filing to be handed over immediately and provides that it suffices to prove lawful stay until the card is issued. It adds that holding it cannot be required as a precondition for exercising other rights where the position can be proved by any other means.
Our card was refused. How long do I have?
One month for the reposicion appeal where the decision is express, under art. 124.1 of Law 39/2015, or two months for the court claim under art. 46.1 LJCA, both from the day after notification. Art. 123.2 bars going to court while a reposicion already filed remains undecided or not yet deemed refused.
If I win, from when does my residence count?
Art. 8.4 of Royal Decree 240/2007 gives a favourable decision retroactive effect, with the residence position treated as valid from the proven date of entry into Spain as a family member of a Union citizen. Art. 8.5 also sets the card's validity at five years from issue, or the expected period of residence of the Union citizen where that is shorter.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.