retain rights of residence

[Hishaam]

Hello,

I am an EEA2 hoder, been married for 3.5 years. I would like to apply for a divorce then a retain rights of residence. I am aware of the regulation 10 5. my Ex is willing to assist me with all the relevant document confirming her identity and her exercising treaty rights at the time of the divorce. I have a couple of questions:
1- my ex is on sick leave for the past three months, If I apply for divorce now then she will lose her job which is most likely to happen, how could this affect my application, does she need to exercise treaty rights just at the end of the divorce when the decree absolute will be issued or she has to be working from the proceeding until the finalizing of the divorce.
2- Is satisfying requirements of regulation 10 5 will guarantee the retain rights or it is more complicated then it looks like..


You replies will be massively appreciated.

Thanks in Advance.

[Obie]

A worker who is unable to temporarily work due to illness, remains a worker for as long as he or she is unable to work due to temporary illness.

[Hishaam]

Thank You for your reply Obie, as per regulation 10 5 the EEA national need to be exercising
treaty rights at the time when the divorce will be made absolute, does this mean the whole period from proceeding to getting the decree absolute or the most important is the last month when the decree absolute is been issued ?

I have seen a Solicitor who did advise me to apply for divorce ASAP in the other hands I have seen few cases when marriage is broken down but the non EE national didn`t apply for divorce until he finished the 5 years and gained rights for permanent leave. What is the best thing to do, getting the divorce and apply for retain rights which is really complicated to be guaranteed even if you meet all the requirements or wait until the end of the 5 years ?

I am really confused and your help will be massively appreciated.

[Obie]

Does the EEA national intend to return back to work? How long did she work in the UK?

You need to know what she is doing and if she will be residing in the UK in accordance with the regulation at time of termination, otherwise divorce could backfire. However there are instances where it could be helpful, especially if marriage has irretrievably broken, there is no prospect of reconciliation, EEA national wishes to depart the UK and stop exercising treaty rights.

[Hishaam]

Thank u obie, my wife been working throughout the whole period of our marriage, she took took a new position last December then she had a hernia operation last month and she is still recovering. Her probation period will end this may and most likely they won't keep her at work. She is not intending to leave the country yet. I would take you advise shall I proceed to the divorce now as the marriage is broken irretrievably or it's better for me to wait for the 5 years to finish?

[Obie]

If she is laid off what will be her intention moving forward, and are you working in the UK or studying?

[Hishaam]

Hi Obie,

She is willing to go back to work as soon as she will recover. I m working full time, been in my position for two years. I haven`t stopped working since i got my residency in 2015.

Do you think it s better and easier for me to apply for divorce then retain rights or wait for the 5 years ?

Thks.

[Hishaam]

Any piece of advice will be highly appreciated guys...

Thank You

[Hishaam]

Hi obie, Please any advise at this point will be highly appreciated.
Thank You

[Obie]

Hi Obie,

She is willing to go back to work as soon as she will recover. I m working full time, been in my position for two years. I haven`t stopped working since i got my residency in 2015.

Do you think it s better and easier for me to apply for divorce then retain rights or wait for the 5 years ?

Thks.

It is really unclear whether she is a worker who is temporarily unable to work due to illness or whether she is not. I am not even sure if you currently have a right of residence at present.

If there is not right of residence, there will be nothing to retain.

[Hishaam]

Hi Obie,

She is a Worker but she s been in a sick leave due to a temporary disability. The situation is : she started a new job in December 20017 / February 2018 She had a surgery and since then she been sent off sick by her doctor.
Her probation period will end in Mai 2018 and most probably she wont keep the job as her health condition won`t allow her to carry out such an activity, but she is willing to take an other job which she can do.

my question is : - is the most important in retain rights is the ex spouse exercising treaty rights from beginning of divorce till decree absolute or is exercising those rights at the time when the decree is absolute?

Secondly what is the best action shall I take, wait until she recovers in few weeks and get a new job the seek divorce or just doing it right away ?

Thank you in Advance.

[Hishaam]

Hi Obie, any reply please