Retain rights after divorce with a twist.

cutepearl · Post by **cutepearl** » Wed Jan 26, 2011 10:30 pm

I'd like some information please if anyone can help.
Got married to an EU citizen in Jan 2008. Been living together since Jan 2007 until august 2010. Working both all this time but he left for his country in august and didn't work since then until today as he was studying in his country, we didn't really got on this time and he said that love has died. I have been working full time since he was gone. Now he's asking to divorce but want to help me too with retaining rights. We have comprehensive sickness insurance but only from last month. We are married exactly 3 years and a few days. He is Back in London now and want to divorce. From august till now he was back in the uk for 10 days in October.

I'm not sure if I'm able to retain rights in the uk please help. Any help would be appreciated.
Thanks

Stefan-TR · Post by **Stefan-TR** » Thu Jan 27, 2011 6:26 am

cutepearl wrote:I'm not sure if I'm able to retain rights in the uk please help. Any help would be appreciated.

I don't see how you could with that story. Your EEA partner needs to be a qualified person throughout all the three years. Otherwise he not only jeopardizes the continuous time required for permanent residence / retention of rights / etc, he could also render your stay in the UK illegal if he stops being a qualified person.

From August 2010 to the point where you two got comprehensive sickness insurance, your EEA partner needs to show some way of exercising treaty rights. For example, he wouldn't cease to be a worker if his job finished in August and he can show that he was looking for another one thereafter. (Job seekers are also workers.)

cutepearl · Post by **cutepearl** » Thu Jan 27, 2011 7:00 am

How about that he was studying during this time? And that he is outside the country only for 5 months which is still under 6 months?

cutepearl · Post by **cutepearl** » Thu Jan 27, 2011 4:18 pm

Is my case really that complicated? I want add that the EU directive states that you can be absent from the country upto 6 months a year. So what do you do in that case if you don't have a job? Doesn't the NHS card cover you and if you haven't taken any benefits?

86ti · Post by **86ti** » Thu Jan 27, 2011 4:51 pm

The UKBA may want to see that the absence was only of temporary nature, e.g. has he given up his flat, was he still paying utility bills etc. If you do not have a job you must register the unemployment.

cutepearl · Post by **cutepearl** » Thu Jan 27, 2011 4:56 pm

Thanks for the reply. Yea the only thing was that he wasn't working. The rest was fine. As we still paid the bills and statements of the accounts were in the same address. Probably we can say that registered with the GP as well. Just that he didn't work for about 5 months.

86ti · Post by **86ti** » Thu Jan 27, 2011 5:00 pm

If he can argue the absence there should be no problem, e.g. was studying work related or had any other reason.

cutepearl · Post by **cutepearl** » Thu Jan 27, 2011 5:11 pm

Correct me if I'm wrong but can you register unemplyed if you're out of the country and be a job seeker? He was actually studying in his home country and we can provide the paper that he was studying.
Btw would the HO know if he was abroad during that time?

86ti · Post by **86ti** » Fri Jan 28, 2011 8:13 am

Sure you can and receive JSA (at least for some time). The HO most likely would not know of his absence but what would he say he was doing in those five months? He was temporarily absent for studying purposes.

cutepearl · Post by **cutepearl** » Fri Jan 28, 2011 8:50 am

Oh well we didn't know that he can have JSA. Yea he can say that he was studying to pass the courses he failed in college and had to study only for 5 months as he has passed now. He actually didstudy during this time in his homeland.

cutepearl · Post by **cutepearl** » Thu Feb 17, 2011 8:41 pm

Another Question...

Do you have to have Sickness Insurance if your spouse is out of the country under 6 months? And does he have to exercise treaty rights while he is away? if yes then what treaty rights will he be exercising in UK as he wasn't present here.??

Thanks

cutepearl · Post by **cutepearl** » Thu Feb 17, 2011 8:45 pm

Another Question...

Do you have to have Sickness Insurance if your spouse is out of the country under 6 months? And does he have to exercise treaty rights while he is away? if yes then what treaty rights will he be exercising in UK as he wasn't present here.??

Thanks

mcovet · Post by **mcovet** » Thu Feb 17, 2011 9:54 pm

Yep, you would have to be exercising treaty rights while away. If here were working and away let's say 6 weeks per year, he'd be on holiday so considered a worker- thus exercising treaty rights.

If he was away as a student or even unemployed, should show he was self-sufficient in the Uk, this is the only right he could have exercised while away. for this you need sufficient funds + sickness insurance to cover that period.

While 5 months may not break the continuity of residence, you should simultaneously be exercising treaty rights without a break!

cutepearl wrote:Another Question...

Do you have to have Sickness Insurance if your spouse is out of the country under 6 months? And does he have to exercise treaty rights while he is away? if yes then what treaty rights will he be exercising in UK as he wasn't present here.??

Thanks

mcovet · Post by **mcovet** » Thu Feb 17, 2011 9:59 pm

to be honest, you are actually better off divorcing. For you to retain your rights you would need to show that:

1) married for 3 years;
2) minimum 1 year in UK (show P60s from the years you lived together in the UK);
3) During the process of divorce from start to finish your husband was exercising treaty rights!

So, just ensure that when you start the petition you have the sickness insurance for BOTH!!!!!!!!!!!!! of you, not only you. This way, you would provide UKBA with the docs that from the start to the end of divorce your EEA was exercising treaty rights. No need to mention absences etc, all you need is the period between start/finish decree absolute of divorce.

If on the other hand you stayed together, you would have needed to prove that throughout 5 years your EEA was exercising treaty rights, so you are now in a better position to go towards your PR than you were before the break up!!!

Congratulations.

cutepearl · Post by **cutepearl** » Thu Feb 17, 2011 10:12 pm

Thanks for the reply... Very helpful...

Well he is back now and working and we have insurance for the since 2 months as well which is a year contract i guess under his name but cover both of us...
he is going to apply for divorce but still not sure about something on the divorce form for which paragraph to use for jurisdiction...
we are both non british... and have been living here for about 5 years at least... are we domiciled or habitually residents?

mcovet · Post by **mcovet** » Fri Feb 18, 2011 2:33 am

Write u r both habitually resident (ignoring his absences) and domiciled (have ur permanent homes in UK). This way thr court can assume jurisdictioj to divorce you. Do it asal while ur insurance and hubby r in uk! What ground would he use for divorcing you?

cutepearl wrote:Thanks for the reply... Very helpful...

Well he is back now and working and we have insurance for the since 2 months as well which is a year contract i guess under his name but cover both of us...
he is going to apply for divorce but still not sure about something on the divorce form for which paragraph to use for jurisdiction...
we are both non british... and have been living here for about 5 years at least... are we domiciled or habitually residents?

cutepearl · Post by **cutepearl** » Fri Feb 18, 2011 9:24 am

Thanks alot. Well we have insurance and both of us are working too. We haven't started the divorce yet so I guess it'll be fine. Fingers crossed.

archigabe · Post by **archigabe** » Wed Feb 23, 2011 2:51 pm

cutepearl wrote:I'd like some information please if anyone can help.
Got married to an EU citizen in Jan 2008. Been living together since Jan 2007 until august 2010. Working both all this time but he left for his country in august and didn't work since then until today as he was studying in his country, we didn't really got on this time and he said that love has died. I have been working full time since he was gone. Now he's asking to divorce but want to help me too with retaining rights. We have comprehensive sickness insurance but only from last month. We are married exactly 3 years and a few days. He is Back in London now and want to divorce. From august till now he was back in the uk for 10 days in October.

I'm not sure if I'm able to retain rights in the uk please help. Any help would be appreciated.
Thanks

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Retain rights after divorce with a twist.

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