Partners, divorce and dissolution

Partners, divorce and dissolution is a key element to almost all dependant based immigration applications. All marriages which take place in the UK must, to be recognised as valid, be monogamous and must be carried out in accordance with the requirements of then Marriage Act 1949 (as amended), the Marriage Act (Scotland) 1977 or the Marriage Order (Northern Ireland) 2003.

The Civil Partnership Act 2004 law permits two people of the same sex to register their marriage. It must be noted that the case of R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for the International Development (in substitution for the Home Secretary and the Education Secretary) (Respondent), the Supreme Court found that restricting civil partnerships to same sex couple amounted to inequality, discrimination and a breach of the right to a family life, in line with Article 8 ECHR.

It is important to note that in the UK, a certificate can only be issued by the following people:

1. Superintendent Registrar.
2. Registrar.
3. Clergy (of Church of England or Church in Wales).
4. Authorised person of a Registered Building.
5. The General Register Office.
6. Secretary of Marriage for a Synagogue.
7. Registering Officer for the Society of Friends.

No other marriages are seen as valid. This brings us to the marriages outside of the UK, and in immigration based applications, there are certain requirements. The law also extends to whether both parties have met in person, which confuses the policy as well as the rulings that are taking place. Here is a checklist which must be adhered to, for the law to recognise that the marriage is valid:

1. The type of marriage or civil partnership is recognised in the country in which it took place.
2. The marriage or civil partnership was properly conducted to satisfy the requirements of the law of the country in which it took place.
3. There is nothing in the laws of either person’s country of domicile at the time of the marriage or civil partnership which prevents the marriage or civil partnership being recognised.
4. Any previous marriages or civil partnerships of the couple have broken down permanently.

A person who is domiciled in England and Wales, Scotland or Northern Ireland does not have the capacity to enter into a marriage where either party is under the age of 16, regardless of where the marriage was celebrated.

A foreign embassy, high commission, consulate or other diplomatic premises in the UK is not regarded as being outside the UK because in the case of Radwan V Radwan (1972) ALL ER 967 it was found that a diplomatic premises forms part of the state in which it is situated.

Proxy marriage or civil partnership

A proxy marriage or civil partnership is where one of the contracting parties has appointed someone (a ‘proxy’), to represent them at the ceremony. Instances occur of marriages or civil partnerships contracted between a person resident in the UK and another party resident overseas. For example, one party will appoint a proxy (such as a sibling or parent) to stand in for them at the ceremony with the other
overseas. On other occasions, the exchange of vows between the 2 parties may take place over the telephone between the 2 countries.

It is not possible to marry or enter into a civil partnership by proxy under UK law. But the UK may accept a marriage or civil partnership by proxy that took place under the law of another country. However there are continued confusion to the policies and the interpretation.

Marriage of convenience and sham marriages

Under S.24 of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage is one in which:

• one or both of the parties is not a British citizen or an EEA or Swiss national;
• there is no genuine relationship between the parties;
• either or both of the parties enter into the marriage or civil partnership for the purpose of circumventing UK immigration controls, including under the Immigration Rules or the Immigration (EEA) Regulations Section 24A of the 1999 Act sets out the same test in relation to a sham civil partnership.

The Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016) define a marriage or civil partnership of convenience as a marriage or civil partnership entered into for the purpose of using those Regulations, or any other right conferred by the European Union (EU) Treaties, as a means to circumvent:

1. Immigration Rules applying to non-EEA nationals (such as any applicable requirement under the Immigration Act 1971 to have leave to enter or remain in the UK).
2. Any other criteria that the party to the marriage or civil partnership of convenience would otherwise have to meet in order to enjoy a right to reside under those Regulations or the EU Treaties.

Part 4 of the Immigration Act 2014 introduced a referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms. Under this scheme all proposed marriages and civil partnerships in the UK will be referred to the Home Office by the registration official if they involve a non-EEA national with limited or no immigration status in the UK or a non-EEA national who does not provide specified evidence that they are exempt from the scheme.

The referral and investigation scheme does not apply to couples where both parties are British Citizens, EEA or Swiss nationals, or non-EEA nationals who provide specified evidence of settled or permanent resident status in the UK, or exemption from immigration control or that they hold a marriage or civil partnership visit visa or a fiancé(e) or proposed civil partner visa.

The Home Office assess all referrals against intelligence, evidence-based risk profiles and other information. Where there are reasonable grounds to suspect a sham marriage or civil partnership, the Home Office may decide to extend the notice period from 28 days to 70 days to allow them to investigate or refer the case on for consideration of enforcement action in relation to either party before or after the 70-day notice period has expired. The purpose of the investigation is to determine whether, on the balance of probabilities, the proposed marriage or civil partnership is a sham.

The impact if the Home Office suspects that the marriage is that of convenience

There has been an increase number of wrongful applications that had been refused by the Home Office due to the lack of understanding culture or that interviews had taken place without providing clear information on its content. The duty of the Home Office is that where a sham marriage or civil partnership has already been determined as part of an investigation, it is expected that the Home Office will refuse the immigration application that relies on it on genuineness grounds (in addition to any other reasons that the relevant requirements of the Immigration Rules or the Immigration (European Economic Area) Regulations have not been met) without further investigation unless
any new and significant information has come to light since the investigation took place.

Immigration enforcement teams also have the ability to identify sham marriages through other work, as detailed in Marriage investigations.
All information submitted with the application for leave or residence on the grounds that the relationship is genuine and subsisting together with the disclosable information obtained as part of the referral scheme or other investigation, and any other information such as a subsequent enforcement decision, must be considered and referenced in the consideration/decision letter.

To avoid those, it is sensible to take some legal advice, understand if there are issues i.e. there could be lack of documents, or you have not lived together prior to your marriage as examples, which would ensure the correct information are provided to avoid a lengthy legal battle with the Home Office. Experience tells us that if a matter goes before an Immigration Judge or to an Admin Court, the matter is usually resolved but the process is lengthy.

Concept behind arranged marriages and culture understanding

In an arranged marriage, the family of both spouses take the leading role in arranging the marriage, but the choice of whether to accept the arrangement remains with the prospective spouses. This form of marriage is acceptable in the UK where both parties are free to decide whether to proceed with the marriage. There is a clear distinction between a forced marriage and an arranged marriage. It is important that you understand the difference between the two.

A forced marriage or forced civil partnership is one in which one or both partners do not consent to the marriage but are coerced into it under duress. Duress can include physical, psychological, financial, sexual and emotional pressure. In cases of vulnerable adults who lack the capacity to consent to marriage or civil partnership, coercion is not required for a marriage or civil partnership to be forced.

Forced marriages and civil partnerships can occur in the UK and often involve partners from overseas. The pressure put on people to marry or enter into a partnership against their will can be physical (including threats, actual physical violence and sexual violence) or emotional and psychological (for example, when someone is made to feel like they are bringing shame on the family). Financial abuse  (taking wages or withholding money) can also be a factor. Forcing someone to marry or enter a civil partnership is a criminal offence.

Part 4A of the Family Law Act 1996 (which was introduced by the Forced Marriage (Civil Protection) Act 2007) or the Forced Marriage (Protection and Jurisdiction) (Scotland) Act 2011) enables the courts to make Forced Marriage Protection Orders (FMPO) to prevent or pre-empt forced marriages from occurring and to protect those who have already been forced into marriage. Some FMPO last for a specific period for example, 6 months and the threat to the person may still exist after the order has expired. The Police and the FMU can provide advice in cases where a FMPO may have been breached, for example, such as one not to remove the sponsor from the UK. The FMU can also be contact for advice.

Possible bigamy, polyandry or perjury

Cases where it would appear that one or both parties to a marriage or civil partnership contracted in the UK have committed bigamy (sometimes also referred to as polygamy), polyandry, or perjury should be reported to the appropriate General Register Office (GRO) (for England and Wales, or Scotland, or Northern Ireland).

It is Government policy to prevent the formation of polygamous households in the UK. S.2 of the Immigration Act 1988 and paragraphs 278 and 280 of HC395 of the Immigration Rules (applicable before 9 July 2012) and Appendix FM (after 9 July 2012) are intended to achieve this policy.

Where the marriage has taken place outside of the UK, it may be valid if contracted in accordance with the laws of the country in which it was celebrated, provided there is nothing in either person’s country of domicile which prevents a polygamous or polyandrous marriage or civil partnership from being valid. However, only one partner can rely on a valid polygamous or polyandrous marriage or civil partnership
for the purpose of leave to enter or remain in the UK as a partner.

Prior to 1982, the interpretation of S.11(d) of the Matrimonial Causes act 1973 meant that if a person domiciled in England and Wales went through a polygamous form of marriage abroad, the marriage would be regarded as being void under English law, irrespective of whether it was actually polygamous (that is, the man only had one wife).

However, the Court of Appeal decided in the case of Hussain v Hussain (1982) 3 AU ER 369, that since a man domiciled in England and Wales has no capacity to take a second wife and under Muslim law a wife is precluded from having more than one husband, the marriage could not be regarded as potentially polygamous and therefore was not void under s.11(d) of the Matrimonial Causes act 1973.

Until 8 January 1996 when the Private International Law (Miscellaneous Provisions) Act 1995 came into force a marriage contracted by a woman domiciled in this country with a man domiciled in a country that permits polygamy was by virtue of section 11(d) void, but it was our practice to accept the marriage for immigration purposes.

Divorce and dissolution in the UK

The Home Office as part of an immigration application will only accept a decree from a UK civil court. In England and Wales, a decree nisi is the court’s decision to grant a divorce provided that nothing comes to light which may alter that decision within the period of time specified on the certificate. If nothing comes to light, a decree absolute is then issued. A decree absolute is the legal document that ends a marriage and will be sealed (black) by the issuing court.

Although a foreign embassy, high commission, consulate or other diplomatic premises outside the UK are for legal purposes regarded as being inside the UK, a divorce obtained from any such premises in the UK is not valid here.

Overseas divorce

This is an important subject area within an immigration application, as the Home Office continues to refuse a number of applications based on the fact that correct evidences have not been supplied either by the Applicant or the Sponsor. The Recognition of Divorces and Legal Separations Act 1971 set out the criteria for the recognition in the UK of an overseas divorce where it was obtained by means of judicial
or other proceedings, valid in the country where it was obtained and either spouse was habitually resident in that country or a national of that country.

The talaq is the traditional Muslim divorce process and the triple talaq is a traditional Islamic law, in which the husband simply states, “I divorce you” 3 times. This has the effect of dissolving the marriage instantly. In 2017, India’s top court banned Islamic instant divorce and ruled the practise unconstitutional. Talaq divorce for Pakistan and for Bangladesh and for all Pakistani nationals overseas was formalised by the Muslim Family Laws Ordinance 1961, (MFLO) which remains in force in Bangladesh.

This requires that when a man pronounces talaq he must give written notice to his wife and also the Chairman of the Local Union Council. After this, a period of 90 days (or the end of pregnancy if the wife is pregnant), known as the Iddat period, must elapse before the divorce becomes effective. There is a process for reconciliation between the parties which may be attempted during this period. This form of ‘full’ talaq is a proceeding for the purposes of section 46(1) of the Family Law Act 1986.

The English courts do not recognise a unilateral divorce by a husband of his wife. If a husband pronounces talaq divorce in the UK and then notifies his wife and the Union Council Chairman in Pakistan or Bangladesh, the divorce will not be recognised. The UK courts have held that an overseas divorce is capable of recognition in the UK only if the divorce has been instituted and obtained in the same country outside the UK.