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EEA spouse divorced outside UK

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difficult_guy
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Joined: Fri Jan 02, 2009 10:53 pm

EEA spouse divorced outside UK

Post by difficult_guy » Sun Feb 20, 2011 11:29 pm

Hi guys,

I'm a eu spouse, I got married with an eu resident in the uk, 2005. I lived and worked in uk through out. after three years of our marrage, my ex wife left uk and she initiated divorce from other eu country. Now my solicitor told me that since your wife initiated divorce from OUTSIDE uk AND at the time of divorce, she was NOT living in uk and exercising her treating right here in uk (as absentee). Therefore you cant apply for PR after five years.....

does anybody help me regarding this sensitive issue please....

bobobo
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Post by bobobo » Mon Feb 21, 2011 9:16 am

Unfortunately your solicitor is correct. To retain rights of residence the Marriage should have lasted for > 3years, 1 year in the UK, The EEA spouse should be exercising treaty rigths in the UK throughout the period especially from divorce initiation until grant of decree absolute.

If during this period the EEA spouse leaves the UK and goes, the Non EEA national automatically looses their right to remain in the UK, as their rights are derived from the EEA nationals rights.

In your case since the Divorce has been initiated from a member EU country, the HO would know straightaway that the EEA spouse left the UK.

So things dont look very bright for you mate.

difficult_guy
Junior Member
Posts: 79
Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Mon Feb 21, 2011 9:26 pm

bobobo wrote:Unfortunately your solicitor is correct. To retain rights of residence the Marriage should have lasted for > 3years, 1 year in the UK, The EEA spouse should be exercising treaty rigths in the UK throughout the period especially from divorce initiation until grant of decree absolute.

If during this period the EEA spouse leaves the UK and goes, the Non EEA national automatically looses their right to remain in the UK, as their rights are derived from the EEA nationals rights.

In your case since the Divorce has been initiated from a member EU country, the HO would know straightaway that the EEA spouse left the UK.

So things dont look very bright for you mate.
But the law does allow EU citizen to travel back at any times and put the condition of three years of tenure of relationship between spouses, which I already have passed. my left uk for the sake of divorce but not for the sake of career or job. I tried my best to read the EU treaty but I couldn't find any law, saying that if my wife initiate divorce outside uk, I will lose the right of residence here in uk, even after period of three years.....

mcovet
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Post by mcovet » Tue Feb 22, 2011 1:21 am

Ok, you are right on one hand. You need to find out whether for your wife to initiate divorce proceedings from abroad she needs to have been resident or domiciled there. If so, find out if she had lied when petitioning there, otherwise the court here would assume that if she managed to issue the proceedings from abroad, she must have been resident there and NOT in the UK. I hope you see my point.

http://www.divorceaid.co.uk/legal/international.htm general info about divorce abroad etc.

Basically, for you to retain the right of residence you will have to show that during the divorce proceedings your wife:
1) was exercising treaty rights in the uk as a
a) worker
b) self-employed
c) student + health insurance for both you and her
d) self-sufficient + health insurance for both you and her

and

2) was also resident here (periods of absences up to 6 months are ignored)

Now, the 1(a) & (b) could prove difficult to prove as the UKBA would wonder why the proceedings were not issued here. However, this is only one indication of her exercising treaty rights from the initiation of divorce proceedings to their end (decree absolute).

If your wife does still reside in the UK and the divorce initiation was simply a matter of convenience then you may still retain the right of residence!

UKBA will try to refuse applications where the disgruntled EEA national just leaves the UK and the couple have not completed the 3 years of marriage (including 1 in the UK) required.

Please let us know what your wife does in the UK, how is she exercising treaty rights and if she is intending to come over at all?



difficult_guy wrote:
bobobo wrote:Unfortunately your solicitor is correct. To retain rights of residence the Marriage should have lasted for > 3years, 1 year in the UK, The EEA spouse should be exercising treaty rigths in the UK throughout the period especially from divorce initiation until grant of decree absolute.

If during this period the EEA spouse leaves the UK and goes, the Non EEA national automatically looses their right to remain in the UK, as their rights are derived from the EEA nationals rights.

In your case since the Divorce has been initiated from a member EU country, the HO would know straightaway that the EEA spouse left the UK.

So things dont look very bright for you mate.
But the law does allow EU citizen to travel back at any times and put the condition of three years of tenure of relationship between spouses, which I already have passed. my left uk for the sake of divorce but not for the sake of career or job. I tried my best to read the EU treaty but I couldn't find any law, saying that if my wife initiate divorce outside uk, I will lose the right of residence here in uk, even after period of three years.....

86ti
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Post by 86ti » Tue Feb 22, 2011 8:26 am

It the wife has left the UK and never has returned since then she the facto gave up her residence. At that point the husband would need to follow her or qualify by himself for leave in the UK. For the UKBA the wife's intentions are the crucial point. An bobobo said that
bobobo wrote:The EEA spouse should be exercising treaty rigths in the UK throughout the period especially from divorce initiation until grant of decree absolute.
mcovet wrote:You need to find out whether for your wife to initiate divorce proceedings from abroad she needs to have been resident or domiciled there.
We would need to know if the divorce was done under UK law or not.

difficult_guy
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Post by difficult_guy » Fri Feb 25, 2011 9:21 pm

Hi Mcovet.

Very interesting answers. I have few things to mention here

1) as you wrote that,

UKBA will try to refuse applications where the disgruntled EEA national just leaves the UK and the couple have not completed the 3 years of marriage (including 1 in the UK) required.

Our marriage lost over three years and I can prove that we stayed (at least- as conditioned) together one year.

2) yes she initiated divorce preceding from her domicile country but I got a letter from her voluntary job, which she was working just before leaving UK permanently. I also manage to get a letter from a local council housing office, where we used to visit for a “affordable housing.â€

difficult_guy
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Joined: Fri Jan 02, 2009 10:53 pm

Post by difficult_guy » Fri Feb 25, 2011 9:24 pm

86ti wrote:
We would need to know if the divorce was done under UK law or not.
sorry I forget to reply that my wife initiated divorce OUTSIDE uk and it took a while before court grant her divorce in her domicile country but they sent me a copy of “Certificate of divorceâ€

86ti
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Post by 86ti » Sat Feb 26, 2011 10:29 am

If a voluntary job doesn't pay then she is not a worker and thus not a qualified person unless maybe she gets compensation in some other way (but that also supports her expenses). Work must be "genuine and effective". Evidence to be a worker includes employement letter, payslips/P60s and the work contract. A self-sufficient person must have comprehenisve sickness insurance for the whole family. As the foreign court granted the divorce they must have accepted that she was resident there (mcovet pointed that out already). In any case, the UKBA will see the EEA national to have left the UK permanently which she has as you say.

ddoctor
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Post by ddoctor » Sun Feb 27, 2011 5:00 am

hi,
As reading above all .. I have one question that if one EEA national wife is a student here for first two years and then work for 1 year , and 3 years for mariage completed .. still does it required to show health insurance for both for her time when she was student ? is that health insurance is a mandatory thing ? your brief replay on that will be much appreciated. thanks

mcovet
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Post by mcovet » Sun Feb 27, 2011 9:01 am

Technically, u COULD get away with only showing she was exercising treaty rights from the start of the divorce to its completion, but because she is outside uk it would be hard, from the info u provided, ur case is diffucult as ur wife left uk and divorce petition would be bad proof against u.

U need to seek legal advice to find out if there is any other way u could qualify to remain in the uk in ur own right.

Sorry cannot help any further and sorry about ur wife leaving before the divorce. The only other way is to persuade ur wife to WITHDRAW her petition, come to uk and be here during the divorce in the uk, if she can assist u at all u would be ok.


ddoctor wrote:hi,
As reading above all .. I have one question that if one EEA national wife is a student here for first two years and then work for 1 year , and 3 years for mariage completed .. still does it required to show health insurance for both for her time when she was student ? is that health insurance is a mandatory thing ? your brief replay on that will be much appreciated. thanks

ddoctor
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Post by ddoctor » Mon Feb 28, 2011 6:28 am

hi ,
thanks for your brief replay ..my Query was actually for a friend . and what i quoted was actually i meant to say that they have been and still living together for last 3 years by now , his wife was student for first two years and now currently working for last one year ..things are not going well between them and , I read this health insurance thing for a the person who has been student , so that was concerning us if things dont go well for them and they seprated or divorce .. do he have to show his wife two years of study+health insurance for both ?? since it was in past there is no possibiltiy to show health insurance of that time .. so on that ground I was asking if that health insurance things is compulsory thing? thanks again for your help . would like to hear your kind insight into that .
regards

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