Signed, Sealed, Delivered (I’m Yours) – Vital considerations where your migration status is a key factor in your plans to formalise your relationship

Senior Associate Christina Coker takes a look at this increasingly important topic.

The Government has recently announced the formation of a task force to target “crooked” immigration lawyers. We make no comment about that save to say that the immigration lawyers we work with uphold the highest standards of our profession, as we are sure the majority do.

To be clear, this blog does not deal with what are commonly known as marriages of convenience, or sham marriages, which are illegal. In those circumstances a marriage (or civil partnership) is entered into as a means to gain or regulate immigration status without a genuine intention to establish a marital relationship. This is immigration fraud and can lead to serious legal consequences for the parties concerned, or those who assist another person to enter into, or facilitate a sham marriage, whether or not it is successful. 

This blog is concerned with individuals in a genuine relationship, often successful people who have an international lifestyle.

So what’s all this about then?

Research suggests that Gen Zs seem to take an especially pragmatic approach to relationships compared to prior generations.  Their outlook is also considerably more global. The world has reopened to international travel and many companies have adopted remote-first and hybrid working patterns. Consequently, couples are making lifestyle choices that are driven less by romantic ideals, and rather by modern day practicalities/realities.

We meet an increasing number of clients who are formalising their relationships, primarily for visa purposes, or to secure their migration status. You might recognise one of the following scenarios:

• Party A is a British national. He travels to country Y on a work contract where he meets and has a romantic relationship with party B (a national of country Y). A is due to return to the UK when B discovers she is pregnant. A decides to marry B to enable B to travel to and live in the UK so that they can bring up their family together.  

• Parties A and B are British nationals. They have been in a relationship for 1.5 years and have discussed the possibility of formalising their relationship at some point in the future. An opportunity arises for A to move to country Y on a skilled workers visa. B is a freelancer and can work remotely but is not eligible for a work visa in their own right. To enable A and B to travel and live together in Y they bring forward their plans and get married.

What do you need to consider?

1. By entering into a marriage, or a legally recognised partnership you are effectively creating legal rights and obligations, the consequences of which may not be immediately obvious to you without the benefit of specialist advice.
2. If you are living in a country on a dependant visa, such as a UK spouse visa or a partner visa, your immigration status is tied to your relationship with your spouse or partner. If you separate or divorce, this could affect your eligibility and render your dependant visa invalid.

Common misconceptions:

• We’ve discussed it and if it all goes wrong, we’ll just go our separate ways

Nice try.  Even if it is a short marriage, and depending on the specific circumstances, if you are the wealthier party you may have to make a payment to your ex to cover their immediate needs.

• We have opted in to a “separate property regime”, so I don’t have to give my ex anything on separation

It is very common in countries such as the USA and in continental Europe for couples to opt into matrimonial property regimes (MPR) where they are able to choose to keep assets and income entirely separate, notwithstanding the circumstances of the marriage/partnership, or the needs of the parties and any children on separation. MPRs (also known as marriage contracts) are not the same as nuptial agreements. MPRs do not exist in English law. While nuptial agreements are recognised by the English Courts and are likely to be upheld provided it is fair to hold the parties to the agreement.

• We are getting married/divorced abroad, where my ex has no rights to my property

Where one or both parties live in England, they may be entitled to bring financial claims arising from their marriage or civil partnership in the English Courts, regardless of where they were married or where the divorce takes place.

Specifically, under Part III of the Matrimonial and Family Proceedings Act 1984 it is possible if certain criteria are met, to bring financial claims after a foreign divorce in circumstances where no, or inadequate financial provision has been made to the economically weaker party.

• When the divorce/dissolution comes through my ex will immediately be removed from my visa and will have to leave the country

We would always strongly recommend that you seek separate legal advice from an immigration law specialist in relation to any matters pertaining to visa issues, so that you are absolutely clear about your, your partner’s, and your children’s immigration status in the event of separation. Subject to that advice, it is possible that in certain circumstances a person may be allowed to remain in the UK, notwithstanding a final decree of divorce/dissolution being granted, if they are actively involved in legal proceedings here relating to the family. They may also be entitled to remain here if they are eligible for a visa in their own right in circumstances where, for example, they have become financially independent from their ex, their children are British nationals, or they have been a victim of domestic abuse. Importantly, immigration policies and regulations can change so you should always seek specialist advice on your specific circumstances.

What can you do to plan for the unknown and protect your position?

Our Top Tips

• Consider entering into a Prenuptial Agreement or Post Nuptial Agreement.
• Forward plan what you agree should happen in the event of a divorce/dissolution.
• Seek specialist advice from an immigration law solicitor on the possible scenarios that could play out in the event of a separation, where you or your spouse are on a dependant’s visa. Factor this advice in to any conversations relating to how assets or income might be dealt with in the event of a divorce/dissolution.
• If you have an existing nuptial agreement (prepared in a different jurisdiction to the one where you are living) and it is your intention to remain in the new country on a permanent basis, have the agreement reviewed (and updated, if necessary) by a local lawyer. This is because a court may not uphold the terms of an agreement that does not comply with the laws of that country.
• If divorce/dissolution proceedings are initiated in a foreign jurisdiction, but you and/or your ex are living in England, make sure you seek advice from a family lawyer qualified in English law on the potential implications of a foreign divorce here.

To ensure that a nuptial agreement and its schedules are legally sound and properly reflect the couple’s intentions, it’s advisable to seek legal advice from a qualified family lawyer.

For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.

Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position in relation to family law related issues and is provided for information only. It is not an endorsement of any product or service provider.