Spouse partner or fiancé visa UK – Evidence of divorce in the UK or divorce overseas
Divorce from previous partner has to be evidence when applying for UK spouse, partner, or fiance visa. Many British citizens and those residing in the UK with permanent resident (Indefinite Leave to Remain) status, frequently have foreign spouses/partners whom they wish to bring to the UK to live together. For this to happen, the foreign spouse/partner would first need to apply for a spouse/partner visa and meet stringent Home Office criteria, supported with piles of specified evidence. When applying for family visa for the UK you need to pay careful attention to the ‘specified evidence’ required to prove each requirement for the visa application, as per the UK immigration rules.
If you wish to read more about the evidence of overseas marriage, we have a separate article on overseas marriage validity for UK family visa.
Evidence of divorce in the UK – UK spouse partner or fiance application
A divorce in England and Wales must be evidenced by either a decree absolute or a final order.
A divorce in Scotland must be evidenced by a decree of divorce.
A divorce in Northern Ireland must be evidenced by a decree absolute.
A civil partnership in the United Kingdom must be evidenced by a civil partnership certificate.
The dissolution of a civil partnership in the UK must be evidenced by a final order of civil partnership dissolution from a civil court.
Overseas divorce – evidence for UK spouse partner or fiance visa
This section deals with overseas divorce. In the UK immigration rules it is stipulated that marriages, civil partnerships or evidence of divorce or dissolution from outside the UK must be evidenced by a reasonable equivalent to the evidence detailed in UK immigration rules paragraphs for UK divorce, valid under the law in force in the relevant country.
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 Family Law Act 1986 instituted new provisions for the recognition of overseas divorces which took place on or after 4 April 1988.
An overseas divorce obtained by means of proceedings shall be recognised under section 46(1) of the Family Law Act 1986 if it is valid in the country in which it was obtained and at the relevant date either party was one of the following:
• habitually resident or domiciled in that country
• a national of that country
Overseas Divorce obtained other than by means of court
proceedings
An overseas divorce obtained other than by means of court proceedings shall be recognised under section 46(2) of the Family Law Act 1986 if the following apply:
- it is valid in the country in which it was obtained
- both parties were domiciled in that country or one was domiciled there and the
other was domiciled in a country which recognised the divorce, at the relevant
date - neither party had been habitually resident in the UK throughout the period of
the year immediately preceding that date
The ‘relevant date’ means either the date on which proceedings were begun or, if there were no proceedings, the date on which the divorce was obtained.
Under section 49 of the 1986 act, in relation to a country comprising territories in which different systems of law are in force (for example, the United States of
America) certain modifications are made to the recognition of divorce under section 46 such that each territory should be treated as if it were a separate country.
Divorce in the Philippines
At present, it is only possible to obtain a divorce in the Philippines which allows both parties to re-marry if both parties are Muslims.
A decree of legal separation may be obtained in certain circumstances but this does not terminate the marriage. Article 41 of the Philippines Family Code allows for a person to re-marry if their spouse has been missing for 4 consecutive years (where there is a well-founded belief that the absent spouse is dead), or 2 years (if there is a danger of death in the circumstances prescribed in Article 391 of the Civil Code).
For a person to re-marry, they must institute a summary proceeding for a ‘declaration of presumptive death’. If the absent spouse at a later stage reappears and makes an ‘affidavit of reappearance’ the second marriage is automatically terminated (Article 42).
If a Filipino were to re-marry in the UK, it would normally be for the Registrar to decide whether to accept the declaration of presumptive death.
All applications for leave from Filipinos on the basis of marriage in the UK who were previously married should be treated with caution, especially where the Registrar was not aware of the previous marriage.