The alarmist title is here for a reason, folks — I have REALLY had it enough with folks who think that obtaining a divorce in their country of origin (“this is where we married!) is a brilliant way to save time and money. Think again — or better, think at least once! at all!! It is interesting how otherwise supposedly all settled and well integrated people completely lack understanding of the expectations of the British legal system, and all of them, even the people I consider on the more enlightened side, universally make the same mistake.
Caveat: anything I say here comes from UKVI staff guidance and, as such, pertains to how divorces (or marriages, where applicable) are recognised for immigration AND NATIONALITY — a very important bit — purposes. You need to consult a family solicitor to see what effect your purported divorce would have on issues such as property or parental rights. But if my guidance below casts doubt on your divorce for immigration purposes, you can panic now.
Remember, as with immigration, so is with other aspects – this may NOT come up immediately. The first, second, and third official that considered your further leave application, or gave your kid a passport, or whatever else, may not have realised that something was wrong with your divorce. It does NOT mean that the government will continue to make the mistake it once made. The moment someone does notice, things can come crashing down. So just because you got a visa or your kid got a passport, does not mean there is no problem — or, if there is no problem now, does not mean there will not be some day. In family law, something like this, I suspect, might not come up until a dissolution of a subsequent marriage years later, or affect your property rand parental rights if your ex spouse figures it out before you do .
Divorce is NOT the same as marriage
Sounds obvious, right? Not to many immigrant folks.
Everyone knows that marriage is valid, so long as it was valid in the country in which it was entered to, at the time it was entered to. That means, for instance, that your Islamic marriage ceremony held in the UK is meaningless, but same Islamic marriage celebrated in Kuwait will be the only one you will ever need — including, in the UK. So most people who came to the UK already married to someone, have no problem — your marriage is almost always valid. Most people who married someone, in the Uk or overseas, even while they were UK residents or citizens — your marriage is also almost always valid. That includes even a proxy marriage that took place in Ghana or somewhere like that, subject to some requirements — for instance, for immigration purposes, we require that the married couple have met in person. Short of that, 99% of overseas marriages will be valid. (The only situation in which I have encountered the ultimately invalid marriage and asked the clients to re-marry each other in the UK, was a convoluted one, described here – scroll down to WAW).
The same is NOT true of divorce. Divorce is very different from marriage, and it is absolutely NOT a given, that you can take a divorce from anywhere in the world and we would recognise it in the UK — at least not for immigration purposes. It is NOT a valid assumption that, for example, if you are both Russian and once married in Russia, a Russian divorce would likewise be appropriate for you. It may be, but it may not. It all depends. Whatever divorce you have when both of you live overseas, is your problem. If at least one of you was a UK resident for any part of a 12-month period just before the overseas divorce, foreign divorce will only be recognised if it was obtained “by means of proceedings”. And even so, at least one other of you must have been a citizen OR habitual resident of the country in question at the time. So, if you are both Russians living in the UK and are going back to Russia to get a divorce, it will work but ONLY if it is obtained “by means of proceedings”.
What does it mean, by means of proceedings?
It means there must have been hearings of some sort in front of some body. Ideally, in most modern countries, this would have been a court hearing, or at least an application to the court and a decision taken by it in default of another party (which usually also requires a hearing to which the petitioning party shows up). This is ultimately what our government means — a judicial divorce, similar to our own. All divorces in the United States, similar to the UK, take place judicially, eg – by application to a court. So, no problem there.
It does recognise however that in some countries, there are quasi-judicial bodies that deal with divorces, such as, a council of elders, a lay magistrate, or such like. In Ghana, for instance, proxy divorces — sometimes between Ghanians who both live in the UK but are represented by relatives — are technically valid, and the Home Office recognises them, because they are affirmed by a magistrate judge at a hearing at which the parties appear.
The run-of-the mill Russian divorce, however, does NOT involve “proceedings”. A couple who are in mutual agreement and do not have minor children, are usually able to get divorced by filing an application with the Registrar (similarly to marriage) and the marriage is then dissolved if both of them filed such an application, or they did it jointly. The outcome of this process is a “certificate of divorce”. Similar process takes place in Ukraine. Such divorce is NOT valid if you were both (or even just one of you) resident in the UK at the time, or anywhere within a year before that.
If you want your Russian, or Ukranian, divorce to be valid in the UK, and you both reside in the UK, this brilliant idea will only work if you obtain it IN COURT. I am not sure a Russian court even would divorce a couple without children who are in mutual agreement — you would have to have children, or probably have to imply absence of such an agreement, at least. I do not know Russian family law. But you have to go TO COURT. A proof of your divorce taking place has to be a COURT DECISION and not a “Certificate of divorce” by a registrar. However, the same certificate, even obtained non-judicially, is perfectly valid to prove a dissolution of a prior overseas marriage which took place at the time neither party to it resided in the UK (not just at the time of divorce but nowhere within a year of it!).
People who both live in the UK have to divorce in the UK. Any reason not to do it means the parties are looking for shortcuts, either around the cost or the necessary separation period, and if the officials have not been suspicious of your such divorce yet, they should be.
The context in which it most often comes up, is such: one spouse was the sponsor, and another – the dependant, in either the PBS route under which they moved to the UK together, or a spouse visa. The marriage dissipated but the couple reached a tacit agreement that they are going to pretend it is all going well for the purpose of dependant spouse achieving ILR. Not as bad in PBS dependant cases, where at least no declaration as to the subsisting nature of relationship is technically required of the parties at the SET(O) stage — but, make no mistake, the expectation that the marriage is subsisting is still implicit in the grant of ILR.
Even worse in spouse cases, where the sponsor is supposed to sign a sworn declaration at ILR stage that the marriage is still subsisting and there is no intention to the contrary. I know what I will say now is controversial, but it is empirically true: a born-and-bred British citizen sponsor will probably not sign such a declaration if it is evidently not true, no matter how amicable the impending breakup. A sponsor who is a former immigrant themselves, however, probably will. I personally know of cases where prior immigration history clearly showed that precisely this happened. I can’t prove it –but what else am I supposed to think, if ILR was granted to a spouse, say, on 14 December, and then a certificate of divorce was issued to a couple in Ukraine on 15 January? And what exactly was either of them thinking when they were doing it? What was the rush?
UK divorce requires either a fault (unreasonable behaviour, adultery) or a long period of separation, eg 2 years. I suspect the couples in the above scenarios don’t go for it, because they realise that claiming 2 years of separation will require either perjury – and they guess this isn’t a good idea — or admission that their marriage was not subsisting at the time they have, implicitly or explicitly, represented to Home office that it was. Most countries that do non-judicial divorces do not require any period of separation – the couple can wake up in the same bed and go get divorced later the same day. So that is their fall back theory.
One very self-assured and enterprising gentleman from Egypt recently engaged in a long battle with me over the validity of his Egyptian divorce obtained under the similar scenario (ex-PBS couple who recently received ILR). Upon the study of the process he described, I concluded his was NOT a divorce by means of proceedings — even though it appeared that both spouses had to file applications to be divorced, parsing that process under the rules as written lead me to believe it was what we call a “notice” divorce and it wouldn’t be valid. he passionately wanted to believe otherwise, having concocted the scheme and spent money doing it — more so, he was about to marry an American woman (she was my prospective client in her future visa application as his spouse – that’s how this came up). He said, “everyone was doing it” and apparently no one ever questioned “it”.
Let’s see. What would you think? ***You can read more here. — These are the official rules***
“Everyone does it, and no one had any problems”
Firstly, no, not “everyone” does it. Most UK residents do the right thing and divorce in the UK, no matter whether they are immigrants or not, and no matter where they got married. UK courts, or, for that matter, US courts, divorce hundreds of couples every day, who had been initially married overseas. The manner or location of your marriage makes no difference to the jurisdiction over your divorce. In England you have to only be a resident – your citizenship also doesn’t matter. Moreover, in England, as well as in many US states, there are complex rules as to marital property, right of divorcing spouses to alimony — a support from a better-off ex-spouse to maintain standard of living – and shared parental responsibility for, as well as custody of, any children.
People who obtain overseas divorces despite the fact that they both live in the UK, usually have something to hide. Often it is the de facto separation which they omitted in a recent immigration filing by one of the spouses — but it can also be a more sinister case of a more sophisticated or wealthy sponsor spouse trying to avoid division of marital assets or claims for alimony and child support. That is why, as a matter of policy, we in the UK wince at this and require that at least some court somewhere look at it – in hope that THAT court would ask these questions, or the potentially disadvantaged party would have a process in which he or she can bring up those questions.
It is true that in all the cases where that had come to my attention, there was also evidence that no one questioned the validity of the divorce at hand at the time that they should have. People obtained naturalisation, or subsequent spouses obtained visas, even when there were reasons to at least ask questions about the validity of divorces mentioned in these applications. I think the reasons for that were mostly do to with incompetence of the caseworkers or lack of awareness of this being “a thing” – rather than conscious rationale. Well, technically, for a spouse application by a subsequent spouse, it is only needed that the previous marriage definitely irreversibly broke down — status of its legal dissolution technically not imperative. Whatever divorce people did obtain seems like they clearly so intended.
However, we do have a policy against polygamous households — if technically the first marriage is still valid, because the divorce is not, and we know otherwise that the first spouse lives in the UK, that could apply — but I see not these are obscure, little-known provisions other rules and guidance not read by most staff. It can also be argued that in a naturalisation process we do not really care if they are still married and when and how they divorced, where naturalisation is not based on marriage (but 5 years of residence, even if some of that residence and ILR were based on marriage).
But I would, reading through a naturalisation application, question how did one obtain a marriage-based ILR in December and then a divorce from the same spouse in January overseas. Candor is a very important factor in naturalisation and it would appear some material omission took place here. But HO caseworkers usually do not ask these questions. But it does NOT mean that these are not valid questions. That you got away with it at one point because someone was too ignorant or lazy to ask questions, really does not that it will not come back to bite you later. The general Home Office position has always been that it is NOT bound by its employees “mistakes” — in quotations because HO uses this word often, to describe the situation when it is taking something away from someone that it previously gave them.
Sure, it is not illegal to be mistaken as to validity of your divorce. But, in terms of subsequent immigration or nationality applications, their validity could be severely impacted by usually very simple revelations that would come to light in many cases if one questions the reason for such a divorce in the first place. Remember, they might just decide to start following their own rules one day.
The most awkward situations, however, arise around children. This is one area when the Home Office finally decided to start following their own rules they didn’t use to bother about, to the effects that appear to devastate surprised parents. Divorces have something to do with this. Read on.
Whose child is this child?
The awkward and socially obsolete concerns around child legitimacy live on in UK nationality law — something many immigrants do not realise until it is too late. Quite a few hasty divorces are undertaken in light of one spouse’s upcoming marriage to another person. Quite often the pregnancy is involved. While racing through a suspect divorce overseas in order to prevent the new, someone else’s, baby being born in the marriage to the now ex-partner, many mothers do surmise correctly that this is undesirable. However they do not often understand WHY EXACTLY is this bad, they are not looking past appearances.
I know for a fact that when my clients, regardless of their marital status, register UK-born babies together with whomever is willing to step forward as that baby’s father, no one asks them whether or not they are married to someone else. You show up, you file, you get the birth certificate. Joint declaration of the people who call themselves parents produces that birth certificate and creates parental responsibility. I assume (I am NOT a family lawyer), there must be some process through which you can establish paternity for the purpose of things like parental responsibility, child support, et cetera, regardless of who is married to whom at the time OR regardless of who is on the birth certificate, like, maybe, you think you could actually be the biological father and you could sue to sort all those out. So, by and large, modern people — or specifically women giving babies fathered by British men — give little to no thought at all to whether they are still married to someone else they had separated from a long time ago, or whether their divorce from that person is valid.
The thing is, the British nationality law is quite archaic in this way. The baby CAN now acquire nationality at birth from a British father unmarried to the mother, sure. But NOT if that mother is technically still married to someone else. For nationality purposes, the baby’s father is the husband of the woman at the time of the birth of the child (ending with the day of divorce). Period.
No matter who is on your birth certificate, technically if you had been still married to someone else when you gave birth to the baby, the baby is not British at birth. The government is not THAT stupid — it knows that you are now living with the British man, and that man, in all likelihood, fathered your baby. But this makes no difference to at-birth nationality, because of how the nationality law is written. It simply cannot be acquired by a child of a married woman based on a third party being the father. The fact that you went to the Registrar and he or she registered the baby with whatever parentage you told him, means completely nothing in respect of nationality. If the mother is unmarried, this is no longer a problem. But if she is still married to someone else, it is a problem. BIG problem.
The fact that HMPO gave your baby the passport when you posted in the birth certificate, also means nothing. HMPO does NOT have a procedure to enquire into the marital status, or validity of an overseas divorce, of the mother of every child it issues the passport to. This is Britain. the government assumes you know the law and are entitled to what you seek — this is an assumption. Whenever in the future it figures out in wasn’t so, it will take corrective action.
A sleugh of scary stories about children who were always thought of as British unable to enter the UK because their passports had been canceled had gone viral on the immigration blogosphere this year, and there was a JR case on that I think. The result of all of this is exactly what I say above: when the government realises the mother had been married to someone else when the child was born, it will realise the child is not British and their passport will be canceled. You can then presumably cure the problem by applying on form MN1 to register the child as British at the government’s discretion– and pay the fee of circa £1000, of course. Overall such an application will probably be successful if paternity is sufficiently proven.
How will they find out, I am often asked. How will they find out that the mother was still married to someone else, or what sort of divorce has she had in haste weeks before childbirth in Ukraine and whether it’s valid? This is really a very non-British question: one has to focus on whether your child is British according to the law, not on how it will come out if he is not. Questions that are not asked now may be asked in the future. Forms will change. Whatever. Heard of Windrush? It will come out, or at least you must be worried sufficiently by the mere fact that it MAY.
The most common way in which it has now started to come out, though, is when the mother subsequently makes an immigration application based on her relationship with the father and/or as a parent. She would then be relying often on para EX1, which of course only works if the baby is British, but if the mother was still married to someone else or divorce was invalid, the baby isn’t really British. The marital history comes up in these applications, plus many of such women (for mysterious reasons I will not comment on) will have been previously married to EU national men with some history of applications on that route. Still, right now I’d say they catch cases in which it is clear from the dates that the baby was born during a continuing marriage to someone else — I have not yet seen them inquire into the validity of divorce, such as, question whether or not it has been obtained by means of proceedings.
But they might at one point. And I feel that perhaps at least several thousand immigrant families will be affected in some way. When the hasty overseas divorce was not via proceedings and was covering up the separation previously omitted in ILR immigration filings, and it can be traced through a subsequent nationality application or one by a subsequent spouse, although this is a numerous category, it’s unlikely that this can be easily uncovered unless someone rats on you specifically — in most of these cases, except the very recent, people will have already naturalised and the likelihood of their applications being revisited is very low. But this may still come up if either of them later sponsors a subsequent spouse, and HO by then decides to pay attention to this.
But the real problem is where children are involved. I think there are at least a thousand or more, of babies who have been presumed British incorrectly, while their mothers were either still outright married to someone else, or validity of their divorce from previous spouse is in question, and this is plainly visible from the filings already made, or inevitably to be made. Judging by my personal case load, families when concerns of this nature are afoot are a substantial percentage of families where FLR(FP) application are involved. If this is you, you should take a hard look back at your situation, whether you were married to someone else, or at your divorce divorce and see if it is valid based on the guidelines in the rules linked to above.If there is doubt, ideally, REGISTER the baby as British through registration, as well as re-file for divorce in the UK if applicable, before applying as a partner or parent on the basis of that baby.
If you already have been granted leave based on having a British baby, but it now appears that very obviously it isn’t, your situation is more difficult. You need advice form both family lawyers and an immigration adviser to determine the best course of action, considering all of the following: whether your leave is ultimately as a partner, relying on EX1, whether it’s an unmarried partner or a spouse (invalid prior divorce could invalidate your current marriage!) or as a parent, whether or not the divorce took place before (but is suspect in nature) or after the birth of the child (but is a fully valid divorce), and whether you now meet requirements for the 5-year route and can afford things like, re-divorcing or registering the baby as British at discretion for a fee. Whether or not these actions make sense really depends on individual circumstances (I wrote out possible scenarios below, but erased them, because I decided generalised advice was inappropriate due to indefinite permutations possible). But I sense this is going to be a new THING. (Or at least it was about to be the new thing, until it became clear the HO is about to be buried under Brexit and oncoming Sopra Stevia disaster).