Separation across borders

Michelle Uppal (second from left) pictured with fellow ILPA conference panel members (left to right) Fiona Snowdon, Tim Barnden, Lauren Guy, Matt James and Emma Cohen

In the March/April issue of The Review Tim Barnden, an immigration partner at Bates Wells, wrote about the recent March ILPA immigration and family law conference and the collaboration between family and immigration lawyers. This article focuses on one of those panel discussions: the interplay of matrimonial breakdown and immigration law.

Tim set each panel member a series of questions which are useful for practitioners to consider when immigration issues arise in our family cases and vice versa. Here are some highlights:

Lauren Guy, Edward Cooke Family Law

When you meet with a client for the first time, is the relationship/marriage almost always already on the rocks?

Most clients come to see us after separating, some very soon after separation if there are urgent financial or children issues that need to be resolved and others many months down the line. We can identify whether there are any immigration issues arising from the separation and refer them for the appropriate advice. I know that things can be more difficult from an immigration perspective as the relevant date is the date of separation, not divorce. Other clients come to see us before any decision to separate is made as they want to make an informed decision about their future. If the client’s immigration status, or their partner’s, is contingent on the relationship, then this can be highlighted so that they can take advice as to the implications of separating on their rights to remain in the UK.

People don’t always think prenuptial agreements are the most romantic way to start marital bliss: can you tell us about how they can intersect with clients who need immigration advice?

Firstly, there is nothing that can be included in a prenuptial agreement that would in some way be accepted by the Home Office as protecting a party’s immigration status.

That said, if one party’s immigration status is reliant on the relationship, there are a number of considerations that could be helpful. As noted, the key date for immigration is the date of separation, not the date of divorce, so it might be helpful to include a provision committing to an out-of-court dispute resolution process to start as soon as practicable after separation, including an agreement to invite an immigration lawyer to the first meeting.

Consideration might also be given to protection that might be required on either side due to an insecure immigration status. This can work both ways. If your client is the one with the wealth and their partner has not brought much to the marriage then a prenup might be appropriate to protect your client. That said, if your client is coming to the UK and will be reliant on their partner financially then it might be important to get a prenup in place that ensures their needs will be met should they separate.

Matthew James, Bates Wells Immigration partner

Why is ‘settlement’ / Indefinite Leave to Remain so important?

Settlement or Indefinite Leave to Remain (ILR) enables an individual to live, work and study in the UK without restrictions on their length of stay or on their conditions of stay. Where someone needs to meet certain conditions for their immigration status, for example they are sponsored to work for a specified employer or, in this context, sponsored by a partner, obtaining ILR means that they are no longer tied to that sponsorship.

If a relationship was to break down before the individual secured ILR, then they would need to find another immigration route to apply under for further permission to stay in the UK. Often this would also have the result of “restarting the clock” with regards to the time that they need to spend in the UK in order to be eligible for ILR in the future.

If a relationship was to break down after the individual secured ILR, then there would not be an impact on their immigration status. As a result, it is often the case that couples look to ensure that their relationship remains until ILR has been secured. However, it is important to note, in the context of a partner sponsored under the UK’s own partner rules, that if the relationship is not genuine and subsisting and there is no intention for the couple to live together permanently in the UK at the point of the ILR application, then the individual would not be eligible for ILR even if the couple remain married.

In the context of matrimonial and relationship breakdown, how has Brexit played out?

Firstly, in EEA/Swiss nationals, it introduced a new cohort now needing to navigate the UK immigration system. Where an EEA national would previously have had a right of free movement to be in the UK, now they could be in a situation where they are either a main applicant in their own right or be a ‘sponsored’ family member. Where, pre-Brexit, a relationship breakdown between two EEA nationals would not necessarily have an impact on one of the partner’s right to reside in the UK, now it can have significant consequences if they are ‘sponsored’ by their partner.

It has also introduced more complexity and different treatment within the UK immigration system. Where, as mentioned above, a partner sponsored under the UK partner rules needs to show a genuine and subsisting relationship, a partner sponsored under the EU Settlement Scheme remains a family member until the marriage has terminated. They could rely on that status to remain in the UK after the relationship has broken down, but before the marriage has ended. Family members with status under the EU Settlement Scheme may also benefit from “retained rights” following the termination of the marriage, whereas these are not afforded to those sponsored under the UK partner rules.

Fiona Snowdon, Anthony Gold

What’s usually the ‘trigger issue’ which prompts you to contact an immigration lawyer?

The most common question from clients would be how a divorce would affect immigration status and what declarations or disclosures may need to be made to the Home Office. A lesson for me as a family lawyer is that the relationship breakdown is what is relevant when it comes to immigration status, rather than the commencement of the divorce or the final order of divorce. This is relevant as, while some clients are merely contemplating a separation, many clients have already separated when they seek advice from a solicitor, and therefore it is important to be aware of this potential issue.

When you are involved in negotiating financial settlements, where do you see immigration coming into play?

Following on from the above, immigration advice could be critical for a party who is trying to bring a claim in England because they have been treated unfairly or unfavourably in a foreign jurisdiction. For example, if the only way in which they can access the English jurisdiction is by establishing habitual residence, then immigration advice will be essential to ascertain if this is realistic or possible. The test for habitual residence is living in the country for six months, but I would personally advise the client to live in the country for 12 months if viable in order to strengthen the case.

It is also worth bearing in mind that once the proceedings are issued, they may take 12-18 months (or longer) to resolve, and therefore that party would be wise to ensure they can stay for that length of time. The applicant will also need to consider arrangements for any children in the event of relocation, including schooling, and whether the other party is able to prevent a child moving with that parent or any other ways in which a move could be obstructed. Sensible planning with a family law and immigration law specialist working in tandem would be advisable for anyone wishing to mount this type of action to ensure that upheaval is avoided and significant funds are not wasted on an abortive application.

Emma Cohen, OTB Legal

Where do children fit into this? How can immigration and family lawyers collaborate to secure their best interests?

Children are often the key to resolving someone’s immigration status when a relationship breaks down because they are likely to give a basis for a different immigration application for a client that is no longer based on the relationship. If it can be argued that a child should not be expected to leave the UK then it should also be possible to argue that both parents should be able to remain in the UK to have an ongoing relationship with that child. Collaboration that secures agreement as to arrangements for the children where both parents are involved is essential.

Michelle Uppal, Lowry Legal

Postnuptial agreements: what are they and where do they fit into our discussions?

This is an agreement which is made after marriage that outlines the ownership of certain assets and how they are distributed in the event of a relationship breakdown. In my experience postnups are generally used as a means of wealth protection for future generations, succession planning in a family business, or sale of a business/allocation of shares. It is a mechanism to ringfence certain assets that have come into the marriage by one of the parties.

A postnup usually mirrors a prenup if there is one. I generally recommend clients to take a belt and braces approach and also enter into a postnup when a prenup is signed close to the date of marriage.

As Lauren has outlined above, the same principles that are applied to a prenup are relevant when advising on a postnup, ie that they need to be fair and freely entered into, with full financial disclosure, including both parties taking independent legal advice or having the opportunity to do so. Whilst postnups, like prenups, are not 100% legally binding, I advise the parties that case law has evolved over the years and if the relevant criteria are observed then they should expect significant weight to be attached to it and for it to be upheld.

Mediation: any examples where immigrations issues have arisen?

Following changes to the Family Procedure Rules in 2024, the term non-court dispute resolution (NCDR) is now widely used with a requirement to engage in meaningful out-of-court processes. Family mediation is only one of the options, with the aim of early resolution of children and financial matters out of court.

The benefits of engaging in family mediation where there are immigration issues can be far-reaching. We know that family mediation is a voluntary process and discussions that take place are without prejudice and confidential. For the right case and with the willingness of the parties, this can be invaluable when a person’s immigration status can depend on a subsisting marriage. As an integrated/hybrid family mediator I would integrate the advice of a joint immigration expert into the mediation process so that the parties can explore options with immigration advice on tap.

Any experience of dealing with and ending marriages of convenience?

I have come across marriages of convenience is various forms over the years. The first point to check is whether the marriage is valid, ie have the parties complied with the laws of the country where they married, which is not necessarily where they live at the point they seek to end the marriage. A case Tim and I had many years ago involved a transgender female seeking to establish immigration rights in the UK, who had in fact committed bigamy by remarrying when she had not in fact dissolved her marriage in India and her current marriage in the UK was not valid.

Locating the other spouse is also a common problem where they have disappeared following their marriage and service becomes problematic, ie advice on dispense, substituted or deemed service have to be considered.

There are a raft of financial rights which those marrying for some reason other than love may not be aware of. This is where prenups can play a vital part in protecting wealth where there are disparities between the parties’ finances. However, as we have said already – prenups are not foolproof and consideration needs to be given to the needs of the parties, ability to work and recourse to public funds if the marriage breaks down.

Other points to note are issues around jurisdiction to end marriages, and to ensure there is connection to the UK, advice on domicile, habitual residence already covered by Fiona above, and not being able to divorce for the first 12 months of the marriage.

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