EC for wife (second marriage before the first was annulled)

[adnan111]

I was separated from my ex wife in UK for 3 years and then divorced her in Pakistan and remarried there before my decree absolute came through in UK.

If I were to apply for settlement visa for wife what would be the best way to proceed? Would the marriage be accept or not and if not what should I do?

Thanks

[Casa]

Your marriage won't be recognised under UK law. Your best option may be to apply for a fiance visa and marry in the UK. I'm assuming you now have divorce absolute.

[adnan111]

Thanks for the reply Casa. Yes got the absolute about 3 years back.

[adnan111]

Just one more thing we have a child together and when I applied for his nationality, I showed them the proof our marriage in Pakistan, but since it would not be recognised in UK I may have to apply for fiancé visa but would I need to show the details of the Pakistani marriage again or can I just ignore that since it is not a valid marriage under uk law?

[Casa]

Proof of a genuine relationship will be needed in the fiance application, so I would suggest being honest about the situation. Fellow moderator Batleykhan may be able to give further advice if he reads this.

[adnan111]

Thanks again Casa. Appreciate your help. Will tell that I am married but since my current marriage abroad was before my decree absolute and not accepted as marriage therefore I am going down the fiancé route.

[Casa]

Yes. I'm sure this situation comes up often.

[NZama1]

would it not be possible to remarry 2nd wife in pakistan then apply for a spouse visa, instead of applying for a fiance visa, registring the marriage in uk then applying for a spouse visa. The first option would save time and money as you could skip the fiance step??

Can you remarry the 2nd wife in pakistan if technically at the time you were not free to marry her due to not having a uk divorce certificate? although you may have had a pakistan divorce certificate

[Casa]

No because under Muslim law in Pakistan you can't re-marry a wife you have previously divorced,,,which is what you would have to do.
Your only option is to apply for a fiance visa and marry in the UK.

[adnan111]

Thanks Casa but I sought formal written legal opinion and was advised that if an Islamic marriage that has been celebrated in a country where it has official binding validity – such as Pakistan – the UK will consider it valid and acceptable for entry clearance purposes.

[Casa]

I can confirm 100% that under British law this won't be accepted and therefore neither will it be accepted by the UKVI for immigration purposes. This situation comes up frequently on the forum and sadly often following visa application refusals for this reason.

[secret.simon]

Casa

Could you look into merging this thread with the following two threads as they are being used by the same people and the conversation would make more sense if they are read together.

http://www.immigrationboards.com/immigr ... 86707.html

http://www.immigrationboards.com/immigr ... 189934.htm

adnan111
Even if the UK were to recognise the validity of the second marriage, which I dispute, the UKV&I could have a more stringent requirement when granting spouse visas. It would be analogous to the UKV&I's treatment of criminal offenses. While general law allows for crimes to be "spent" after a specified period of time, the UKV&I does not treat them as "spent" for the purposes of immigration law

...if an Islamic marriage that has been celebrated in a country where it has official binding validity – such as Pakistan – the UK will consider it valid and acceptable for entry clearance purposes.

There is a caveat to that, which is that the UK does not recognise polygamous marriages. A second marriage while a man is already married is void under UK law. So, an Islamic marriage when a man is single or divorced would be honoured by the UK. Such a marriage would not be honoured if a second or subsequent marriage as the man was not "free to marry" under UK law.

[adnan111]

If you have obtained your decree absolute then there is no reason for UKVI not to accept your Islamic Marriage if it is has official validity in the country of marriage. The written legal opinion I received was very clear on this point. However I shall keep you updated as I expect to receive a decision fairly soon.

You cannot marry someone again in Islam, there is no concept of civil marriage there for muslims, and you cannot be expected to get divorced. Your wife is not your fiancée so you shouldn't have to lie in order to get a visa.

[secret.simon]

adnan111, can you reproduce the legal opinion, after taking out any identifying details?

[Casa]

If you have obtained your decree absolute then there is no reason for UKVI not to accept your Islamic Marriage if it is has official validity in the country of marriage. The written legal opinion I received was very clear on this point. However I shall keep you updated as I expect to receive a decision fairly soon.

You cannot marry someone again in Islam, there is no concept of civil marriage there for muslims, and you cannot be expected to get divorced. Your wife is not your fiancé so you shouldn't have to lie in order to get a visa.

Under British law (and for immigration purposes) she can only be considered as a fiance, as she won't be recognised as a wife as the marriage was void.

[adnan111]

adnan111, can you reproduce the legal opinion, after taking out any identifying details?

1. Will the marriage entered within your wife and you in Pakistan be accepted as valid in the UK?

The answer to this question is it depends. If the marriage entered into your wife and you in Pakistan has legal validity in that country, it will be accepted by the UK. I suspect you ask this question as this may be an Islamic marriage (i.e. a nikah). Islamic marriages entered into in the UK have no legal validity. However, if an Islamic marriage that has been celebrated in a country where it has official binding validity – such as Pakistan – the UK will consider it valid and acceptable for entry clearance purposes. The key here is that your marriage has official validity in Pakistan.

2. Would your wife be legally considered as your wife or fiancée for the purposes of an application for entry clearance?

As per my previous answer, if the marriage entered into between your wife and you in Pakistan has official validity, your wife will be considered to be your spouse.

3. Would you have to go through another ceremony? What are the pros and cons of each option?

If your Pakistani marriage has legal validity in that country, the answer will be no.

[secret.simon]

I agree entirely with the legal opinion given. It states very clearly that an Islamic marriage in a country where that is the legal way to get married is accepted in the UK.

But the opinion does not say a word about what if it is a polygamous marriage, which may be legal in Pakistan, but not in the UK. A second marriage conducted while the first marriage existed (which it does before a decree absolute) is void under UK law. In legal terminology, "void" means it does not exist. In order for it to come into existence, it may be necessary to remarry. If Pakistan & Islamic law does not allow for it, the only alternative is Casa's response of applying for a fiancé visa to marry in the UK.

Broadly, while the marriage may exist in Pakistani law, if your wife and you plan to settle in the UK, it is UK law that needs to be followed. And in UK law, the marriage never existed because you were not free to marry at the time of your second marriage.

[Casa]

You've missed the most important point. Yes, under normal circumstances when both parties are free to marry the marriage would be considered in the UK if it is legal in Pakistan. In this case the groom was already married and polygamy is not permitted under British law, therefore the marriage would not be recognised. Over my seven years on the forum I've seen far too many spouse visa applications refused for exactly this reason.

Edit: secret.simon you beat me to it.

[adnan111]

Yes but the situation and the background was explained whilst seeking legal opinion, and the above advice was given. So the legal opinion although it does not expressly mention the circumstances at the time of the marriage, it has been given taking those circumstances into account.

At the point of application for entry clearance there is no polygamy.

[Casa]

You may also like to refer to this guidance under Immigration law:
278. Nothing in these Rules shall be construed as allowing a person to be granted
entry clearance, leave to enter, leave to remain or variation of leave as the spouse and
civil partner of a man or woman (the sponsor) if:
(i) his or her marriage or civil partnership to the sponsor is polygamous;

and

primary consideration should be given to whether the marriage is valid in United
Kingdom law. If it is not, the application should be refused on that account alone -
without considering the provisions of the Rules relating to polygamy;

[adnan111]

There is no polygamy after a decree absolute has been obtained, at this point the marriage overseas becomes valid under UK law. Besides if you are separated and living apart for years I am not sure marrying again abroad after obtaining a religious divorce would still fall under the essence of polygamy as you don't have any relationship with your first wife.

[geriatrix]

Changed the title of the topic to make it easier for others to search if looking for guidance in similar situation.

[Casa]

There is no polygamy after a decree absolute has been obtained, at this point the marriage overseas becomes valid under UK law. Besides if you are separated and living apart for years I am not sure marrying again abroad after obtaining a religious divorce would still fall under the essence of polygamy as you don't have any relationship with your first wife.

No matter how many years a couple are living apart, under British law, a marriage is only considered to be terminated by the granting of a divorce absolute. This divorce absolute does not validify a previous marriage that would be considered polygamous.

[adnan111]

There is no polygamy after a decree absolute has been obtained, at this point the marriage overseas becomes valid under UK law. Besides if you are separated and living apart for years I am not sure marrying again abroad after obtaining a religious divorce would still fall under the essence of polygamy as you don't have any relationship with your first wife.

No matter how many years a couple are living apart, under British law, a marriage is only considered to be terminated by the granting of a divorce absolute. This divorce absolute does not validify a previous marriage that would be considered polygamous.

278 (i) needs to be read together with (ii).

[Casa]

adnan111, I can only reiterate how many times I have seen refusals on the forum for the route you seem determined to take, but after all the choice is yours. I would however, advise others against it.