The Interplay between Immigration and Divorce Rules

On the 6th April this year, major changes to divorce legislation came into place.

The Divorce, Dissolution and Separation Act 2020 reforms the legal requirements and process for divorce. The law aims to reduce conflict between divorcing couples by eliminating the need for one spouse to make allegations about the other spouse’s conduct.

Prior to the current reform, in order to get a divorce, the party initiating the proceedings needed to put in his or her divorce petition one of the grounds for divorce stipulated in the law, such as adultery or unreasonable behaviour among others. On several occasions the other party did not agree with the grounds and opposed the divorce. This created even more conflict between the parties, delayed the divorce proceedings and in some cases prevented the parties from getting divorced.

What this new legislation does is to allow the parties to divorce without the need for one party to blame the other, i.e. to divorce by mutual consent. The changes in the law also make it impossible to challenge a divorce except on very limited grounds such as where it is alleged that England or Wales is not the correct jurisdiction for the proceedings to take place.

In principle these changes are obviously positive as they allow people not to be “trapped” in a marriage they do not want to be in. Unfortunately for others, getting divorced has implications for their immigration status as it is tied to the person they are divorcing.

Hence the question arises: What happens when a person who has a visa based on their relationship with their spouse gets divorced? In order to answer this question we must first ask ourselves the following question: Was this person granted a visa under the UK immigration rules or under the EU Settlement Scheme?

In the first case we are talking about someone who was granted leave to remain in the UK because they are married to a British national or someone who has indefinite leave to remain. In this case, if the relationship ends, the person will not qualify for visa extension or indefinite leave to remain. Only if the person is a victim of domestic violence or if the spouse dies will the person be able to remain in the UK based on their relationship. In these cases there may be other alternatives for the person to continue to reside in the UK such as on the basis of their children, long term residence in the UK, etc.

In the second case, the rules of the European Settlement Scheme do allow a divorcing person to retain their right to reside in the UK if the following requirements are met: 1. the spouses have been resident in the UK for at least one year, 2. At least three years must have elapsed between the date of marriage and the date on which the divorce proceedings were initiated, 3. At the time the divorce proceedings were initiated the European must have been working or have indefinite residence and 4. As of the time the final divorce certificate is issued the person holding the visa must be working in the UK. In general terms, these are the requirements that a person needs to meet in order to retain their right to reside in the UK when divorcing a European.

Manuel Padilla Behar is a solicitor specialising in immigration law and is the owner of MPB Solicitors. You can contact him here: manuel@mpbsolicitors.co.uk

First published in Spanish in Express News

 

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