DIVORCE - EU LAW living in the UK

[Single_mum]

I'm Irish but living in the UK.

Married Non-EU - 05/2018
Non-EU joined - 07/2018
Separated 10/2020 (adultery)

I am in the process of deciding what to do. I only came to the UK so we could be together but would now like a divorce. I would kindly appreciate any input on how to go about this. He always said he will go back to his home country if we don't work out. I now know that was a lie as he ran away from all responsibilities believing his residence card is 5 years and then he will turn it into citizenship. I know EU law is slightly different from the UK. We have a child born outside of the UK which he has not had any contact with since 10/2020.

1) Apply for divorce now, which is less than 3 years married but more than a year living together
2)Apply when I intend to go back to my home state which will probably be 10/21

I don't want to be married to him anymore but I also don't think he should be in the UK if he has no care for our child which would have been my only reason for helping him continue living here.

[secret.simon]

Retained right of residence vests automatically under EU law/the Withdrawal Agreement and there is nothing the possibly aggrieved EEA citizen can do about it.

The only case when retained rights of residence does not apply is when the marriage was a "marriage of convenience".

As I understand it, for it to be considered a "marriage of convenience", both parties must have entered into the marriage insincerely, with only the objective of circumventing immigration law.

If either one party to the marriage was sincere (in the case of this marriage, you), it is not considered a "marriage of convenience".

[Single_mum]

Thank you for your feedback.

So when I leave and go back to my home state. He will still be able to retain his residency and also allowed to apply for British citizenship.

Would you please advise me of where to find the retain residency in the Brexit agreement. If you don't have this to hand it's ok. I know it's quite a big ask.

[JB007]

Thank you for your feedback.

So when I leave and go back to my home state. He will still be able to retain his residency and also allowed to apply for British citizenship.

Would you please advise me of where to find the retain residency in the Brexit agreement. If you don't have this to hand it's ok. I know it's quite a big ask.

That's the EU for you.

You can look back on this board where many are asking how to retain right of residence to be able to stay in the UK and look at problems they are haivng trying to do that. Or you can type Retain Right of Residence into a search engine and read the requirements they must meet for that, if their EEA sponsor leaves the UK etc.

[secret.simon]

Would you please advise me of where to find the retain residency in the Brexit agreement. If you don't have this to hand it's ok. I know it's quite a big ask.

Article 10 of Title I (General Provision) of Part Two of the Withdrawal Agreement.

1. Without prejudice to Title III, this Part shall apply to the following persons:
...
(f) family members who resided in the host State in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.

Also Article 13(4) just further below the above Article in the Withdrawal Agreement.

4. The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.

Article 13 of Directive 2004/38/EC

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; or

(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; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(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.

As you can see above, the ability to retain right of residence on divorce has been there in EU law since 2004 and still applies in the current member-states of the EEA.

If it is any consolation, your former spouse will not be able to sponsor any future spouse of their own, except after they acquire ILR/Settled Status, and even then, it would be under the much stricter requirements for British citizens.

[Single_mum]

Thank you so much for the detailed explanation.

(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; or

It seems that I might have a window if we haven't been married 3 years based on your explanation. Thankfully I can be rest assured he will not be able to bring someone else in. Thank you so much