Divorcing as an Immigrant – What do you need to consider?

Nilah Ulhaq from our family law team and Amna Ashraf from our immigration team answer some commonly asked questions when considering divorce as an immigrant in Scotland.

Can I divorce in Scotland?

If you or your spouse have been living in Scotland for over a year, you can ask for your divorce to be dealt with in Scotland. You could also deal with your divorce in Scotland if either you or your spouse are domiciled here.

However, in deciding where to divorce, it is important to get specialist advice as there are a number of factors to consider. Read more on this in our dedicated blog.

In what circumstances can I ask for a divorce?

You can ask for a divorce in Scotland if you have a legal basis to do so. You need to establish that your marriage has broken down irretrievably as a result of any of the following circumstances:

• You and your spouse have been separated for one year and they consent to the divorce.
• You and your spouse have been separated for two years (in which case you do not need their consent).
• Your spouse has been unfaithful.
• Your spouse has behaved so unreasonably you cannot be expected to continue living with them.

It is important to note that to be deemed “separated”, you do not need to be living in separate places. You and your spouse will be deemed separated if you are no longer living together as spouses, even if that is in the same house.

What is the process for divorce?

Before getting divorced, it is important to sort out 1) any financial matters and 2) any childcare arrangements. The aim is to then prepare a written Separation Agreement between you and your spouse. There are often a number of things to consider and our family law team can guide you through that process.

After that, an application can be made to the local court asking for your divorce to be granted based on one of the reasons set out above.

What is the effect of divorce?

In Scotland, divorce is a one-stage process. Divorce brings a marriage and any financial claims to an end. It can also have legal implications for a family living in Scotland as the status of the migrant will be at risk.

What are the options for the migrant?

These depend on the reasons for the divorce and whether the couple have any children.

If the reason for divorce is domestic violence, then the abused spouse can consider switching their spousal visa to SET(DV) which will allow them to remain in the UK indefinitely. They would need to demonstrate that they were living with their British partner prior to the onset of the violence. They would also need to provide evidence of that violence whether it be physical, emotional or phycological.

In situations where the abused spouse is without funds, they can apply for access to public funds which then enables them to seek social housing. If successful, this would result in indefinite leave to remain which can lead to British citizenship.

If the couple have child/ren, but there is no domestic violence involved, the migrant can consider applying as a parent of a British child route. Similar to the above, they would need to show normal married life until they separated, ideally on an official document such as a separation agreement.

Often in cases where the divorce process turns acrimonious, switching of the visa is recommended as soon as one is separated rather than waiting until the official divorce. This reduces the chances of the British spouse contacting the Home Office in a bid to curtail or cancel the migrant’s visa.

The migrant would also need to show direct in person contact with their child/ren. If the contact is indirect, it would not in itself meet the rules of this visa, but a separate human rights claim can be made which is granted at the decision maker’s discretion. If successful, this will result in leave to remain in the UK for 30 months with right to work on an employed or self-employed basis.

In all other cases, the migrant can apply to switch to other visas from inside the UK as long as their spousal visa remains valid. Other visa types can include work visas, student visas and, in some cases, business-based visas. The immigration landscape on this front is under constant change with the introduction of new visa categories and it is worthwhile seeking a consultation to discuss a bespoke solution.

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