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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
Satisfied Customers: 13323
Experience:  Solicitor
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I am a female South African citizen who has been married to

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I am a female South African citizen who has been married to an Austrian citizen (we married in South Africa) since August 1998. We have two sons (who are both Austrian citizens), aged 8 and 10. In July 2009 we moved to the UK with our children. My husband is exercising EU treaty rights, so I am in the UK on an EEA family visa. I also have a daughter from a previous marriage, who is now aged 20 and has also come to live with me in the UK on the EEA family visa (she too has a South African passport).

There have always been problems with my husband's behaviour during the marriage. He has repeatedly been without work due to his refusal to find alternative employment during lulls in his field (he works in the offshore oil exploration industry). He has brought us to the brink of bankruptcy many times. In addition, he has always had a severe addiction to internet pornography. He has acknowledged his problems, but refuses to address them. I remained with him for the sake of the children.

On arrival in the UK, I found employment quickly and have worked non-stop, effectively being the breadwinner. His behaviour continued to deteriorate, and a few months after we arrived here I discovered that he was having an affair. This was the last straw, and I asked him to move out. He has had a string of affairs since then, and continued to have long periods of unemployment, often getting into debt, and borrowing money from me and from friends.

I did not divorce him because I don't want to jeapordise my position in the UK. We both agree that we have settled here permanently and want to build a life for our children here. Our sons are settled in school and have adapted very well. My daughter is studying via distance university, and has a full-time job (while continuing to live with me) and she supports herself.

About 18 months ago I became involved with a British citizen whom I have known for 24 years. We have been living together, along with my children, and now wish to marry. What is my position if I divorce my husband? Will I be allowed to remain in the UK? I have read the immigration rules, and it seems that usually on divorce a non-EU citizen has to leave the country, although there are some exceptions (e.g. if there are children settled here, and if the non-EU citizen is self-supporting, which I am).

What will my daughter's position be if I divorce? She has no wish to return to South Africa either.

How will I be affected if I marry my partner (the British citizen)? Is it better if I wait until I have been here for 5 years as an EEA family member, then apply for indefinite leave to remain, then divorce? I am concerned about possible changes to the law.

Thank you and kind regards.
Submitted: 4 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 4 years ago.
Thank you for your question. If you divorce your husband, because you have been married for a long time you would be entailed to retain your EEA rights and would not be required to leave the country. After 5 years you can obtain settlement. If you marry a British citizen and remain on a spouse visa then you will cease to have EEA rights and have to qualify under the immigration rules. you can apply for settlement as a spouse after 2 years.
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