Marta Mendiondo, head of immigration, Ince
Marriage is a life-changing event; even more so if it involves two people from different nationalities, with a possible international relocation and all its related administrative tasks.
If you have a foreign spouse, or you have been sponsored for a partner visa, you will be acquainted with the UK’s immigration system. It is not an easy or cheap process; applicants must meet a number of requirements to be granted a visa to join a fiancé, spouse or civil partner, including:
- Documenting that the couple have met in person;
- Proving that the relationship is genuine;
- Providing financial information;
- Proving they have accommodation and outline where the couple expect to live; and
- Passing a compliant English language test if they are not from a majority English speaking country, and depending on their country of residence, provide a tuberculosis test.
The process is typically slow and arduous, particularly for individuals not versed in these matters or those with a complex immigration past. Applicants who do not seek legal advice will find it more stressful, as even one mistake or omission can lead to an application being refused, therefore losing any fees and additional waiting time - as a fresh application will have to be submitted and paid for.
On top of this, UK Visas & Immigration (UKVI), part of the Home Office, is well known for its scarce communication with applicants, and trying to get in touch with a member of staff proactively is almost impossible.
A legal adviser can make sure that your application is fully compliant at the submission stage; preparing it in the best possible manner for the UKVI caseworker to approve it as soon as it reaches the assessment stage.
Throughout the application process, we are able to guide, assist and reassure you every step of the way. This ensures the best chance that your application is approved at the first attempt and avoids lengthy separation times (consideration times by the Home Office are currently up to 24 weeks after the visa appointment.
Protecting your wealth
Many applicants will put any additional legal advice on hold until their visa extension is due. However, when marrying an overseas partner, applicants and sponsors should also consider protecting their wealth in the event of a marriage breakdown. This is particularly important for parties who may never have actually lived together before and marriage would result in them living together for the first time.
The most common and widely-used way to protect your wealth before a marriage is by entering into a pre-nuptial agreement.
The agreement records what will happen to capital and income within the relationship, acquired both before and during the relationship. It should be entered into no less than twenty eight days before the marriage.
A sponsor may be concerned about protecting their wealth in case of a marriage breakdown, therefore entering into such an agreement is good evidence to present before the court if the couple were to later divorce.
Pre-nuptial agreements must be completed in accordance with legal requirements; including full disclosure of income and assets, providing each party within the agreement the opportunity to take independent legal advice, and remaining fair throughout.
Obtaining independent legal advice abroad is essential, so it is important that your advisor has knowledge of family law in the relevant jurisdiction/s. Each legal adviser would need to sign a certificate to confirm independent advice has been given.
Pre-nuptial agreements are an important consideration in the event of a marriage or civil partnership breakdown.
If the agreement has been completed with the correct formalities, is fair and provides for the needs of the children of the family, the courts are very likely to uphold its terms. Indeed, there is a presumption, following the landmark case of Radmacher in 2010, that such an agreement should be upheld.
In the event of a marriage or civil partnership breakdown, a Financial Order made by a court in the absence of a pre-nuptial agreement has the potential to, and is very likely to, provide the separating parties with a very different outcome in the distribution of their assets.
It can often be difficult to resolve financial arrangements at the time of relationship breakdown. Emotions may be high and there may be a lot of bitterness. Certainly, there is often much distress and confusion as well. As well as these difficulties, the legal costs of dispute can be high.
Therefore, it is sensible and recommended for two people who are soon to enter into a marriage or civil partnership, to consider what they would each wish and expect to happen should the relationship fail. It may not be romantic, but it is becoming more common practice.
After marriage, parties may enter into post-nuptial agreements. These agreements must meet the relevant legal requirements to be enforceable and upheld. Usually, much like a pre-nuptial agreement, there will be a clause requiring it to be reviewed at different, key stages of the relationship.
This would normally be when children are born, the disability of one party, or at a certain date. A post-nuptial agreement should also be a consideration in the event of an inheritance being received by one party, particularly if they seek to ring fence that inheritance from the marital assets.