Retain of rights 2012

Dear Sir/Madam,

I am Non-EEA citizen married to Estonian national. I am seeking a legal advice now before going further with my case.

We have been married for 3 years now, been residing also 3 years in UK. I am employed, but my spouse is not working already a half an year.
We are actually living apart already 3 months now and we would like to get a divorce. I know that I am eligible for Retaining of Rights in order to continue living in UK.

Could you please list all the necessary documents I need to have in order to apply for Retain of Right and have my case successful?

I would very much appreciate your help and I am looking forward for your answer.

lena_lena wrote:Dear Sir/Madam,

I am Non-EEA citizen married to Estonian national. I am seeking a legal advice now before going further with my case.

We have been married for 3 years now, been residing also 3 years in UK. I am employed, but my spouse is not working already a half an year.
We are actually living apart already 3 months now and we would like to get a divorce. I know that I am eligible for Retaining of Rights in order to continue living in UK.

Could you please list all the necessary documents I need to have in order to apply for Retain of Right and have my case successful?

I would very much appreciate your help and I am looking forward for your answer.

you absolutely need to make sure that if he isn't working, he is actively looking for work and you will be able to prove that. Not only do you need to have live in the UK for a year and been married to him for 3 years, but also during the time he needs to have been a QUALIFIED person. This means that he either needs to have been a worker, self-employed, student or self-sufficient. For the last two categories, in addition, you BOTH need to have held comprehensive sickness insurance for the full period of him being in that category.

Now, if he was working half a year ago and throughout the whole period of your residence in the UK, him seeking work would make him a QUALIFIED person and he will still be classed a WORKER! so you would not need sickness insurance. However, your situation is slightly complicated and you would need some proper advice, attend a citizens' advice bureau and see what they have to say.

You should ensure that throughout the divorce process (which can take anything from 3 months upwards) he is a QUALIFIED person. So, he is actively seeking work (so is regarded a worker) or is a worker etc. or take out health insurance for both of you and be regarded as self-sufficient.

basically, give us full details of HIS work history for the last 3 years, as it is his work which matters (unless, you were working and providing for him, in which case, as per above, you BOTH need health insurance).

The important point is not that the EEA national has been a qualified person during their residence to date, but that they are a qualified person at the date the divorce becomes final.

The relevant bits of Regulation 10:

(5) A person satisfies the conditions in this paragraph if—

(a)he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;

(b)he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c)he satisfies the condition in paragraph (6); and...

...(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration; ....

... (6) The condition in this paragraph is that the person—
(a)is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6...

The previous residence requirement at 10(5)(c)(i) is not subject to a requirement that such residence was in accordance with the Regulations.

lena_lena, if you start divorce proceedings, you will need to make sure you have evidence that you and your husband have been living in the UK (bank statements, utility bills etc. addressed to you at your UK address(es)) for at least the year before proceedings were started.

Then you need to make sure that your ex is a qualified person at the time the divorce becomes final. So if he finds a job before then, that is fine. Otherwise, you will need to show he is self sufficient, or has retained his worker status (as mcovet suggests). You will need evidence such as payslips or a statement from his employer that shows he was working at the date your divorce became final.

You can apply for confirmation of your retained right only after the marriage is actually terminated.

The main difficulty with your ex not working now is that your right of residence until the divorce is final does depend on his being a qualified person. For that reason it would be useful to find out details from your husband about his status.

Is he likely to co-operate with you in providing the documents you need?