Our experts in family law and immigration, Alex Mann and Ben Xu discuss the implications of a marriage breakdown involving a spouse visa.
Marriage
Marriage is the lawful union of two persons to the exclusion of all others. You can get married or form a civil partnership in England and Wales if you are (i) 16 (with parental consent) or over; (ii) not already married or in a civil partnership; or (iii) not closely related. Same-sex couples can convert a civil partnership into a legal marriage.
Immigration considerations will always arise when two people are looking to get married in a foreign land. Getting married in the UK requires “blessing” from the Home Office. Only once you have proven that you will not be a burden on the UK’s social welfare system will you be given the permission to remain in the UK and granted a spouse visa. This special permit to a certain extent gives the holder two and half years certainty as far as residence in the UK is concerned which can be extended for another two and half years. After five years with a spouse visa, the non-British spouse would have earned their rights to remain in the UK permanently, subject of course to still being married to their British spouse and being able to maintain themselves financially.
Separation
To start divorce or dissolution proceedings in England and Wales one party to the marriage or civil partnership must file a divorce petition with the court. This is a form that gives the court information about both spouses and informs the court that the marriage or civil partnership has irretrievably broken down. The party filing the petition (known as the petitioner) must briefly set out evidence that the marriage or civil partnership has broken down by providing details in relation to one of the following five grounds for divorce or dissolution: (1) Unreasonable behaviour; (2) Desertion; (3) Two years separation with consent; (4) Five years separation without consent; or (5) Adultery (applicable to divorce only).
Once the divorce petition has been issued the court will send a document called the Acknowledgment of Service to the respondent; to confirm whether or not the petitioner wishes to defend the divorce/dissolution. Upon receipt of the completed Acknowledgment of Service, the petitioner is then able to apply for Decree Nisi or Conditional Order, that being the ‘interim’ stage of the divorce/dissolution. The judge will review the petition to make sure it fulfils the legal criteria for a divorce/dissolution and if satisfied that the marriage or partnership has irretrievably broken down, it will pronounce Decree Nisi or the Conditional Order.
At any time after Decree Nisi or the Conditional Order has been pronounced, the court has the power to make a legally binding financial order setting out one’s arrangements for finances and property upon divorce/dissolution. Until a financial order has been approved and sealed by the court, financial claims as spouses will remain open even if the divorce/dissolution is finalised. It is therefore crucial to obtain a sealed financial order from the court setting out the agreement reached and where applicable, dismissing one’s financial claims against the other spouse in respect of capital, income and pensions. If you do not obtain this order, either party to the marriage or partnership could seek further financial provision from the other spouse in the future.
Six weeks and one day after the pronouncement of Decree Nisi or the Conditional Order, the petitioner to the divorce can apply for Decree Absolute, that being the ‘final’ stage of divorce upon which your marriage or partnership legally comes to an end. It is advisable not to apply for Decree Absolute until such time that an agreed financial order has been approved by the court, given that the way in which assets are held changes upon divorce. Therefore in reality, there is often a much larger gap between the pronouncement of Decree Nisi and Decree Absolute to give parties time to resolve their financial matters.
Visa considerations
So what happens to one’s spouse visa when the love fades and marriage ends? Sadly, the Home Office would want their “blessing” back and have the non-British spouse’s visa curtailed, meaning they would have to leave the country unless they are able to switch to a different visa category that would allow them to continue their life in the UK.
Even with the most amicable divorce there are undoubtedly a multitude of matters that need to be discussed and agreed before a divorce is finalised. The last thing you want to be concerned about is your visa issues. But the clock starts ticking as soon as your relationship has broken down permanently as you are under an obligation to report your break-up to the Home Office. This would inevitably trigger the process of curtailment of your spouse visa. Therefore, if the intention is to stay in the UK after the divorce, you must summon the courage to seek legal advice on your visa options immediately when you have reached the point of no return.
Getting the right legal representation is only the very first step to a successful application, not only because UK immigration law is a minefield, but also the process of acquiring a UK visa can be long and emotionally draining. The suitability of certain visa categories is completely dependent upon your personal circumstances. The more ties you have to the UK the more options may be available to you. Having a minor child who is a British citizen, for example, may increase your chance of getting a visa to remain in the UK after divorce; so would receiving a sizable divorce settlement which may give you the option of applying for a Tier 1 Investor visa.
For those who have a successful career, you might want to consider taking advantage of the Global Talent visa or a Tier 2 visa (work permit in other words). These are only some of the visa categories which might be available to someone who is going through divorce proceedings. Choosing the most suitable visa is therefore the very foundation of your future residence in the UK.
If you are going through a separation and require advice from a matrimonial or immigration lawyer, please do get in touch with one of our experts to discuss this further.
A monthly briefing from Irwin Mitchell
January 2021
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