Non eea Divorce from eea spouse

[Guerro]

If I speak about settlement and documents she will see a solicitor and ask him what is the best way to HARM ME. As I know her, she will back up to france for a couple of years to lose her pr status and then file for divorce and I will be in a legal vaccum.

Impressive! Both that she knows so much about EU free movement law, and that you mean so much to her that she would go out of her way for years to "hurt you".

Lol, it is not impressive. She doesn't know much about any law, divorce or eu, but the problem is her FEMALE FRIENDS! They just pour oil to the fire. What I said was just a suggestion anyway and I have to be ready for all options as anything can happen.
Am I meeting the condition of 3 plus years? Answers appreciated

[Guerro]

Breaking news,
I spoke with wife this morning and she said one of her friends told her that divorce in any embassy is not recognised and we have to do it in a court, which is good news. Is any uk court going to be fine? I remember you spoke about different types of courts in the uk, are they all the same?
Secondly, we start divorce procedures mid november, do I meet the three years plus for retention or shall I consider switching to any other category as I don't meet the requirements for retention?
Thanks guys

[EUsmileWEallsmile]

Divorce is different in different part of the UK. It really depends on where you live.

On the one hand it is good that you are speaking to your wife. If you can, you should try mediation before getting lawyers involved. The objective would be to have a negotiated settlement (a compromise). Once lawyers get involved, communication between the parties sometimes suffers.

[EUsmileWEallsmile]

Obie, Let me get this right. Diatta judgement means that separation from spouse does not mean the loss of residence rights for the other spouse. Only once the marriage is terminated by the competent authorities.

The prior to initiation of divorce proceedings part appears to apply to length of marriage only, viz three years and one year in the member state. The OP meets requirement this already. Because his wife has PR, he is not dependent on her working anymore. The difficulty may be proving that without co-operation from her.

Divorce proceedings themselves can take a long time to complete, years in some cases and in some jurisdictions.

[Guerro]

@ eusmileweallsmile:
We reached that decision, to divorce at uk court, as she wants to remarry next year. As a result, she said she doesn't want to have any contact with me or offer me any help and that's why I want to do the retention on my own with the papers I have.
I live in london, what type of court is responsible for divorce and what is the best option for divorce?
Regarding retention, I believe I meet the three years plus rule as we married in august 2008 and we start divorce in nov or dec 2011, even though I started living in the uk since feb 2009.

[Obie]

Obie, Let me get this right. Diatta judgement means that separation from spouse does not mean the loss of residence rights for the other spouse. Only once the marriage is terminated by the competent authorities.

The prior to initiation of divorce proceedings part appears to apply to length of marriage only, viz three years and one year in the member state. The OP meets requirement this already. Because his wife has PR, he is not dependent on her working anymore. The difficulty may be proving that without co-operation from her.

Divorce proceedings themselves can take a long time to complete, years in some cases and in some jurisdictions.

On the basis of the information the OP has provided, i may qualify for retention of residence, going by the wording of Article 13 of Directive 2004/38EC.

However according to the UKBA's interpretation, someone cannot secure a retained right of residence, or gets a confirmation of such rights, unless they can show that amongst other requirements, that the EEA national was a qualified person or a person with a Permanent right of Residence ( Not exactly stated but it will be safe to assume it is included), prior to the Decree absolute been issued.

Diatta was seeking to protect non-EEA national from exploitation and abuse and not to punish them. However the UK has used a restrictive intepretation of Diatta, combined with the interpretation of Article 13 to impose additional burden on non-EEA spouse of EEA national, which i think cannot be right.

It is either one or the other, in my view, you cannot say that someone is a family members until the marriage is terminated, and say they will not be considered for retained right of residence unless they can show that prior to the initiation of divorce, the marriage has lasted 3 years. This is two separate requirements which seems a bit contradictory to each other, in my view.

If someone is able to show a decree absolute and evidence that prior to the initiation of their divorce their marriage had lasted 3 years, including at least one year spent in the UK, they should be able to retain their right of residence. The UKBA does not see things that way.

I believe from reading the directive alone, your advice which i questioned earlier, seems right, however it is not correct when it come to the procedural and administrative steps required to obtain a confirmation of retained right of residence, as simply showing that the EEA national was in the UK up to the time of the initiation of the divorce, and exercising treaty rights will not be sufficient.

[Guerro]

[quote="Obie"
I believe from reading the directive alone, your advice which i questioned earlier, seems right, however it is not correct when it come to the procedural and administrative steps required to obtain a confirmation of retained right of residence, as simply showing that the EEA national was in the UK up to the time of the initiation of the divorce, and exercising treaty rights will not be sufficient.[/quote]
But this is what retention is and even eea2 form section about retention.
So, what else is required beside three years plus, eea is qualified and evidence of living together a year or more?
Thanks

[mcovet]

obie, can you explain what you mean? Your remarks make no sense at all.
OP here satisfies everything and either before divorce or after he will have legal residence in the UK, why worry him? Elaborate on what you wanted to say please.

Obie, Let me get this right. Diatta judgement means that separation from spouse does not mean the loss of residence rights for the other spouse. Only once the marriage is terminated by the competent authorities.

The prior to initiation of divorce proceedings part appears to apply to length of marriage only, viz three years and one year in the member state. The OP meets requirement this already. Because his wife has PR, he is not dependent on her working anymore. The difficulty may be proving that without co-operation from her.

Divorce proceedings themselves can take a long time to complete, years in some cases and in some jurisdictions.

On the basis of the information the OP has provided, i may qualify for retention of residence, going by the wording of Article 13 of Directive 2004/38EC.

However according to the UKBA's interpretation, someone cannot secure a retained right of residence, or gets a confirmation of such rights, unless they can show that amongst other requirements, that the EEA national was a qualified person or a person with a Permanent right of Residence ( Not exactly stated but it will be safe to assume it is included), prior to the Decree absolute been issued.

Diatta was seeking to protect non-EEA national from exploitation and abuse and not to punish them. However the UK has used a restrictive intepretation of Diatta, combined with the interpretation of Article 13 to impose additional burden on non-EEA spouse of EEA national, which i think cannot be right.

It is either one or the other, in my view, you cannot say that someone is a family members until the marriage is terminated, and say they will not be considered for retained right of residence unless they can show that prior to the initiation of divorce, the marriage has lasted 3 years. This is two separate requirements which seems a bit contradictory to each other, in my view.

If someone is able to show a decree absolute and evidence that prior to the initiation of their divorce their marriage had lasted 3 years, including at least one year spent in the UK, they should be able to retain their right of residence. The UKBA does not see things that way.

I believe from reading the directive alone, your advice which i questioned earlier, seems right, however it is not correct when it come to the procedural and administrative steps required to obtain a confirmation of retained right of residence, as simply showing that the EEA national was in the UK up to the time of the initiation of the divorce, and exercising treaty rights will not be sufficient.

[Guerro]

Obie, i'm worried to death!
Please explain why I don't qualify.
Shall I try work permit and quit eea route then?

[Obie]

Obie, i'm worried to death!
Please explain why I don't qualify.
Shall I try work permit and quit eea route then?

Please don't get worried to death.

I never sought to worry you, and i regret if anyone felt that way or formed the view that my statement can be construed in that way. I stated at the opening of my last post that on the basis of the information you have provided, you will qualify for retained right of residence.

I subsequently opened a new debate on whether or not it is right for the UKBA to demand that up to the time the decree absolute is issued the former spouse or sponsor was exercising treaty rights, and concluded that in light of Article 13 and the judgement in Diata it is not.

Hopefully the later part of my debate will have no effect whatsoever on your ability to secure retained right of residence as your wife is a PR holder, provided of course the process is swiftly concluded, and you can provide evidence of her PR status, and hopefully it will not have exceeded 2 years since she obtained PR.

Perhaps the grammatical structuring of my last post could be better if i was not using a mobile phone, but i cannot understand how it could be interpreted as meaning you will not qualify.

I was only responding to a previous post, and analysing my understanding of Diatta and Article 13 of the Citizens Directive.

[mcovet]

"It is either one or the other, in my view, you cannot say that someone is a family members until the marriage is terminated, and say they will not be considered for retained right of residence unless they can show that prior to the initiation of divorce, the marriage has lasted 3 years. This is two separate requirements which seems a bit contradictory to each other, in my view. "


I don't see any contradiction here and it actually doesn't make sense, can you expand please?

Do you mean whether or not to count time between initiation and termination? Directive is clear on that and UKBA follows its wording

[Guerro]

The problem is that I can't submit her pr card, I only have photocopy and the ORIGINAL LETTER accompanying the pr. She is not going to help at all and really and truely We want to divorce as there will be no settlement on such issues.
If i'm refused retention and take ukba to court, do I stand any chance of winning the appeal? Logically, if ukba open their system they will see she is pr holder.
Does my argument make sense?

[Obie]

The point that i was seeking to make is that, one of the requirements did not originate from the directive ( Up to the time of the divorce being finalised, the person is a family member of a an EEA national who is exercising treaty rights). This part stem from Diatta, it has no relevance to Article 13 of the Directive.

If they are going to rely on Diatta, by adding another requirement for retention of rights, which is not present in the directive, then they might aswell say period up to the time the decree absolute was granted counts toward the three years of marriage requirement.

This is all academic to the OP's current case.

Mcovet, the view i expressed has no significiance to OP. I was simply making the point that UK goverment, try and interpret these provisions as restrictively as the can, in most cases in breach of community law.

I am not disputing that the 3 years prior to initiation of divorce is unlawful requirement, but the requirement to provide evidence showing up to the time of marriage, the EEA national was a qualified person, is certainly not.

[mcovet]

@Guerro
Yes, you do stand a perfect chance of retaining your right as all the court has to do is confirm with the UKBA whether your spouse has PR card. It is straightforward.

@Obie
I know it's academic. The Diatta judgement helps a lot in that even if the couple live apart, so long as their divorce is not initiated, the time counts towards the 3 years required. I don't see how UKBA are in any way using this to their advantage. Once the process of divorce starts, whether the couple lived together or separately, the time for counting the length of the marriage stops. There is no contradiction, not even academic.

Another argument could be that until the divorce is finalised, the couple are still married (per Diatta) and if they never divorce/the divorce proceedings take the marriage past 5 years, then the person acquires PR automatically.

[EUsmileWEallsmile]

[quote="Guerro"]@ eusmileweallsmile:
We reached that decision, to divorce at uk court, as she wants to remarry next year.
I live in london[/quote]

She wants the divorce so she can remarry. Great, now if she really wants the divorce, then she needs your co-operation in the matter. A party who does not want a divorce can drag things out quite legitimately. Where both parties agree, then it can be quick and painless. Ask for a quid pro quo, your co-operation for hers.

Living in London it would be an English court.

[mcovet]

http://www.justice.gov.uk/index.htm

enter either name of your local court (if you know it) or the Region (London, in your case) and it will give you the names of your local courts. When you click on any of them it will tell you the type of work they do. Look out for words like "Divorce" etc.

If you are in London, many people use the High Court, the Principal Registry of the Family Division http://www.justice.gov.uk/guidance/cour ... ntacts.htm their contact details). But you don't have to and you can use any of the other ones which deal with Divorce.

[Guerro]

@ obie: thanks for reassuring me

@ mcovet: does it mean that I will be rejected first and then I have to appeal and take ukba to court to get my retention? is there any possibility to apply and get it straight without court?

@ eusimleweallsmile: i started to get to know lots of things through FRIENDS. there is a possibility she moves to france and remarry there and thats why i want to do divorce here and quickly. whether she stays here or not, remarry or not, she is not going to help

[mcovet]

Should you have enough proof, they may well issue it straightaway. And I would not worry about appealing, even though it sounds scary and stressful, as you are 100% entitled to it, there is no way in a hundred years that you would lose your appeal.

You simply need to get a divorce and that's all. You are lucky she has PR otherwise you would have had to satisfy the UKBA that she also is exercising treaty rights and with uncooperative spouse that could have been a problem (there is another post here of a woman in exactly this situation).

So, stop stressing and just gradually either yourself issue the petition (advisable as then you can have your divorce initiated) but you would need to prove certain "grounds" which I listed in my previous link.

Think about it and get on with it, either way I wouldn't worry!

@ obie: thanks for reassuring me

@ mcovet: does it mean that I will be rejected first and then I have to appeal and take ukba to court to get my retention? is there any possibility to apply and get it straight without court?

@ eusimleweallsmile: i started to get to know lots of things through FRIENDS. there is a possibility she moves to france and remarry there and thats why i want to do divorce here and quickly. whether she stays here or not, remarry or not, she is not going to help

[Obie]

@Obie
I know it's academic. The Diatta judgement helps a lot in that even if the couple live apart, so long as their divorce is not initiated, the time counts towards the 3 years required. I don't see how UKBA are in any way using this to their advantage. Once the process of divorce starts, whether the couple lived together or separately, the time for counting the length of the marriage stops. There is no contradiction, not even academic.

You reserve the right to hold a view that is contrary to mine, and i respect this.

Your statement above is correct, i have no issues with it whatsoever.

What i have made clear i have issues with, which you are not getting, is the extra requirement imposed by the EEA regulation, or the guidance given to European caseworkers, which requires evidence that up to the time of the divorce been finalized the EEA sponsor was a qualified person.

I believe the UKBA are wrongly using Diatta in this regards to their advantage.

There is no site of the above requirement in any provision of the directive, except a restrictive interpretation of Diatta.


The directive specifically did not want to use diatta, in making provision for retention of right, which is why the wording of it states "Prior to initiation of Divorce"

UKBA cannot then use it, to demand something which is not in the directive.

This is the point i was seeking to make.

You will be surprised how government can use a ruling which is meant for the purpose you stated above, to impose restriction which does not achieve the purpose for which it was passed.

This is important to OP's situation, and it is important that it is not ignored.

Yes the OP qualifies for Retention, but he has a spouse who is not prepared to provide support, in order to enable him to meet the extra demand from the UKBA.

In light of Amos, the UKBA will not be oblige to help him, even though they have access to tax record and NI contributions and evidence of the wife's PR. They will say the onus is on him to prove his case.

Therefore sweeping statements like he will get it are premature, and may prove unhelpful.

I believe the first thing is for him to get the divorce then, the battle will commence.

He is close to it, but not completely. After the divorce, we will see what documents he has from the wife, and what she is prepared to provide, if any, and what UKBA will demand. Then we can take it from there.

Hopefully the wife will not have had PR for more than two years, hasn't left the UK, and may be prepared to provide support.

Without all this in the equation, how can we say conclusively that OP will get a confirmation of his retained right status.

I wish him every success, and wants him to succeed, but we have to be realistic and not give him false hope.

[Guerro]

This is important to OP's situation, and it is important that it is not ignored.

Yes the OP qualifies for Retention, but he has a spouse who is not prepared to provide support, in order to enable him to meet the extra demand from the UKBA.

In light of Amos, the UKBA will not be oblige to help him, even though they have access to tax record and NI contributions and evidence of the wife's PR. They will say the onus is on him to prove his case.

Therefore sweeping statements like he will get it are premature, and may prove unhelpful.

I believe the first thing is for him to get the divorce then, the battle will commence.

He is close to it, but not completely. After the divorce, we will see what documents he has from the wife, and what she is prepared to provide, if any, and what UKBA will demand. Then we can take it from there.

Hopefully the wife will not have had PR for more than two years, hasn't left the UK, and may be prepared to provide support.

Without all this in the equation, how can we say conclusively that OP will get a confirmation of his retained right status.

I wish him every success, and wants him to succeed, but we have to be realistic and not give him false hope.

Obie, Thanks very much for your help. I like to expect the worse so if it happens, i am prepared for it. if good things happen as mcovet said, i will be happy still!
the documents i have are:
* my passport
* proof i work since 2010 till now
* bills and bank statements proving we lived together for 2.5 years in the uk (is there a certain number of bills I have to provide? we lived a year and a half in a flat with all bills included)
* marriage certificate issued in august 2008
* decree absolute (maybe issued by feb 2012)
* photocopy of wife passport
* photocopy of wife pr
* photocopy of wife 5 p60
* original letter from ukba proving her pr status
* until now, she is still working for the same employer and I have the institution name and address
* finally, this is all I have and nothing more will be provided.

what do you think about the scenario and how is it going to go?

Thanks everyone

[Obie]

It looks good, but i believe it is premature to talk about retained rights without the divorce. Get the divorce first and then proceed with that

[Guerro]

It looks good, but i believe it is premature to talk about retained rights without the divorce. Get the divorce first and then proceed with that

this is what I was thinking about as well

[Azhaar]

but it worries u, because i started talking about PR 2 years ago lol specially after i had my problems with my ex, i started to worry

[Guerro]

an update,

I met with wife and we downloaded the form D8 for divorce. we will send it to Edmonton court, North London.
regarding retention, she is not going to provide any documents at all and she will change address during or after divorce as it is getting expensive for her to stay in the same flat.
my questions are:

1- is a decree absolute from this court ok, as you told me earlier that divorce is different in different areas of the uk?
2- regarding retention, are all the papers I currently have sufficient or what is going to happen?
3- in worst case scenario, where the court will ask me for evidence she is pr or working while she changed address, what is going to happen?

I start panicking now and appreciate your help

[Obie]

an update,

I met with wife and we downloaded the form D8 for divorce. we will send it to Edmonton court, North London.
regarding retention, she is not going to provide any documents at all and she will change address during or after divorce as it is getting expensive for her to stay in the same flat.
my questions are:

1- is a decree absolute from this court ok, as you told me earlier that divorce is different in different areas of the uk?
2- regarding retention, are all the papers I currently have sufficient or what is going to happen?
3- in worst case scenario, where the court will ask me for evidence she is pr or working while she changed address, what is going to happen?

I start panicking now and appreciate your help

I will use numbering to answer your questions.

1. Yes Decree absolute from any courts in the UK jurisdiction is valid.

2. The second question cannot be answered with absolute certainty. But i think you have a good deal of documents, according to what i read previously.

3. I don't understand the last question, which court will ask for Permanent residence, or working? if it is the district court you are referring to, then you don't need to worry a lot.

No need to start panicking. In the end, you will find it is not worth the worry.