Divorce with EEA citizen

[oppy]

I am a new member of this forum and will need advise.I married my EEA husband in june 25 2009 and we have been living together in the Uk.We currrently have a child but unfortunately thing got sour and he has decided to start a divorce against me, he has sent the form d8 for divorce to court on june 9th 2012 but my fear right now is what date will be written on the decree nisi , is it june 9th 2012 or the date after all forms and signature and evidence that divorce is not contested.please advise as our marriage will be 3 years on june 25th 2012 so i hope him sending the form d8 for divorce in on the 9th of june wont affect me retaining my rights.

[oppy]

pls advise and help needed desperately

[EUsmileWEallsmile]

Article 13 of the directive applies.

(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;

The relevant timeline is that the marriage is to have lasted three years before divorce proceedings commenced. If divorce proceedings have formally started, then it would appear that you would not qualify on this basis for retained right of residence on this particular sub-paragraph.

But as you have a child, there are other clauses.

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children

and

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Seek legal advice for the divorce and ensure that your legal adviser is aware of the immigration angle. Don't let this wait.

[Guerro]

If you have received the form D8 in june your decree nisi will never be issued before July/August. If you hold the papers for just one week and fill it in then send it on 16 June, the court will get back to him to swear an affidavit within 10 to 14 days. In theory you should be a little bit safe but you could have made arrangements with your ex to start divorce just a month from now.

[oppy]

Thanks for your response,i havent received the form d8, he only told me he has sent the form d8 to the court on 9th of june 2012, i havent received any correspondence yet from the court, i havent sign any document saying i am not contesting the divorce, you also made mention of my ex not starting divorce a month from now, please can you explain better because i dont understand what you mean by that

[EUsmileWEallsmile]

If the divorce proceedings commence three years after marriage you may be able to retain right of residence. You're very close to that.

On the other hand, you have a child and that may also help.

Seek legal advice.

[Guerro]

I mentioned one month from now as Eusmileweallsmile mentioned, to complete your 3 years of marriage to be able to retain your residence. the court will process the application in a week or so and send you a copy which I strongly advise you to hold it for a week before sending it. hopefully the post service gets really slow these days to receive your form quite later than a week and when you send your form, use a second class stamp to take a bit longer.
Better still, a tortoise delivering post is best in your case