Non-EU/EEA Spouse of Irish Citizen: Separation/Divorce

[theleprechaun]

So I've found a couple of similar topics but none quite match my current situation closely enough (every case is unique, I know, but I've not found details of one similar enough to mine for comfort). I've been doing some research and think I may have found my own answer, but I'd appreciate it if someone who may have experienced a similar situation could give me their thoughts on the matter.

So I found this: http://eur-lex.europa.eu/LexUriServ/Lex ... 123:EN:PDF (though this forum actually).
Article 13(2) seems to apply in my situation.

Article 13
Retention of the right of residence by family members in the event
of divorce, annulment of marriage or termination of registered partnership
...
2. Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of
the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of
residence of a Union citizen's family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered
partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has
lasted at least three years, including one year in the host Member State;
...
Before acquiring the right of permanent residence, the right of residence of the persons concerned
shall remain subject to the requirement that they are able to show that they are workers or
self-employed persons or that they have sufficient resources for themselves and their family
members not to become a burden on the social assistance system of the host Member State during
their period of residence and have comprehensive sickness insurance cover in the host
Member State, or that they are members of the family, already constituted in the host Member State,
of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis.
...

I have no kids and have not been victim of domestic abuse, so the other cases don't apply to me, only the first one (a)

Now, my situation:

• I am a South African woman (yay for non-visa-required national!)
• I've been married to my Irish husband (descent - Irish mother by South African born, though he's had his Irish citizenship practically since birth) for a little over 3 years now. Except for the first 5 months living in South Africa, our entire marriage has been living in Ireland, though registered in South Africa.
• We've been living together in Ireland for almost 3 years now as a married couple (few more weeks will mark 3 full years)
• I've literally just had my Stamp 4 renewed for the 3rd time (so 3 years validity, to Feb 2017 - I always renew about 2 weeks early just in case of delays)
• Very recently (as in last few month) things started going badly for us, and have been getting steadily worse, but we've been trying our best to work it out, to make an honest go of it.
• It all culminated last night (literally days after my latest Stamp 4 renewal - a sheer coincidence) when I found out a few surprising things and made the decision to end things between us. I won't go into detail, but suffice it to say that, in my opinion, his transgressions were severe enough that I'll never be able to forgive him entirely, that we'd never function as a 'happily' married couple ever again.
• He is still living with me right now (my apartment, I pay full rent and bills, and have since our first day in Ireland), but plans to move out in the next few weeks once he has found a place of his own.
• We are still married (but separation or divorce is sure to ensue, though I have no clue on the timelines)
• He has mentioned that he might go back to South Africa at some point (weeks, months, years, who knows) as most of his family and friends are still there - his Irish parents have been living in South Africa for 30+ years - this would probably speed up divorce proceeding as I understand that the waiting periods in SA are measured in weeks instead of years as in Ireland.

My conclusion is that I should be entitled to retain my current residence status (3 years Stamp 4), because:

• we've been married more than 3 years (with no divorce of separation proceedings started as yet - officially we're still married and living together, albeit unhappily, but in the eyes of the law we're still husband and wife)
• more than 1 of those years of marriage were spent in Ireland - legal, registered, everything full above-board.
• I am employed full-time permanent basis (i.e. not contract or temp work) and at my current job more than 1 year. Thus I am fully self-sufficient and can provide for myself (I have no kids, not with my husband nor anyone else) and therefore satisfy the 'worker' requirement (and can prove this easily in the form of employment confirmation documents from work, and my original employment agreement docs). Bank statements, payslips, not a problem (I understand there's a 3-month requirement on those)

I assume I'd need to write the GNIB or INIS to inform them of my new situation, once things become official (proceedings have been initiated, or my husband moves out of my apartment, or my husband leaves Ireland, whichever situation may arise first), but based on the above that they should not issue any changes to my current residence permission/status - I should be able to continue on with my current Stamp 4 until renewal time in 2017, at which time I'd have been legally resident in Ireland for 6 years (fully reckonable as per INIS requirements, with past stamps in my passport as proof, and no absences from Ireland except for a few short holidays, none of which exceeded 2 weeks in duration) and be able to renew my Stamp 4 independently (5 years is the next renewal, I believe, which also counts as 'long-term residence', if I'm not mistaken?), or apply for naturalization if I wish to do so at that time (I'd have fully satisfied the 5 years reckonable residence requirement by then, as these 3 years already done should count, regardless of whether I'm still legally married or not in 2017, and I should be able to apply as an independent individual)

As there is no mention of separation or living apart, I assume that until we are legally divorced, we are still married by law and the above applies - I'll should be allowed to remain in Ireland.

Any advice from people who've been a similar situation would be much appreciate. Even just recountings of your own experiences (which may give me some idea of what I could hope/fear to expect for myself) would be great. Right now I'm facing a brand new situation, and all the research/documents in the world won't ease my fears as much as hearing about successful outcomes of others in similar situations.

So thank you in advance to everyone who takes the time to read my somewhat lengthy post (I have a tendency to provide more information that is usually necessary, but better safe than sorry is my motto), and thank you two-fold to those who reply. I'm hesitantly optimistic at this point, though not being a lawyer, I may have misinterpreted the Directive, which is why I appreciate so much the response from you guys - fresh eyes or personal experience.

Thank you!!!

[chaoclive]

I hate to be the bearer of bad news, but the Directive 2004/38/EC will only apply to the family members of non-Irish citizens and Irish citizens who have applied for residence under the Surinder Singh ruling.

As such, I think this should only apply to those with Stamp EU4FAM and not those with a normal sram 4 (which is given to spouses of Irish citizens).

Even if the Directive you found (which is about Free Movement) only applies to family members of non-Irish citizens and Irish citizens who have worked in another EEA country and, therefore, able to apply under Surinder Singh, there may be something in the Irish national immigration rules.

I may be wrong in this (and I hope I am) so I hope that someone else comes along to give you more information.

You might want to drop a shorter, clearer email to the 'Spouse of Irish National Unit' in INIS: INISsinu@justice.ie.

Good luck!
CC

PS: You could also consider asking Citizens Advice for info?