Radwan V Radwan

[yorkieb]

Dear Forum

My fiancee sucessfully obtained a 6 month fiancee visa and is in the UK with me in the process of getting married. The register office is booked ,28th Feb, intention to marry served at the correct office, fees paid, everything done as advised.

However today we received a letter from the General register office saying we cant marry.

The reason :

My fiancee was previously married in bangkok in 1998 and moved to Hong Kong. In 2002 she annulled the marrage by mutual concent through the royal thai embassy in HK. royal thai embassy issued the divorce cert and liased with Bangkok. All legal and correct.

Now comes the twist she wants to marry in the uk. A forigen divorce to be measured as valid in the uk must follow the family law act, (142 I think). This states that any divorce oblatined in a forigen embassy is under the juristdiction of that country. Also a case radwan v radwan showed that a forigen divorce granted in a forigen embassy in the uk was deemed to be issued in the british iles. Therefore a divorce issued in the hk royal thai embassy under the familly law act 142 under hk juristdiction. In HK under the family law act a divorce can only be achieved through a civil court( apparantly according to the GRO). As my fiancee didnt go through the court and relied on the embassy. Her divorce doesent fit the validity criteria in the uk however valid in thailand. Dispite been given a fiancee visa in BKK and all paper vetted we cant do ahead, and the only course of advice the GRO can give is go the BKK and marry and resubmit for a spouse visa. Which is going to be a big ball ache as we have had 3 tourist and 1 fiancee visa so far and know what a process it is.

Any advice on how we could crack this stupid burocuracy. would help

Yorkieb

[the scouser]

Yorkie,

I do not pretend to be an expert on UK divorce law, but from the description you have given, it does sound as if the GRO's interpretation is correct. My understanding is that for a foreign divorce to be recognised in the UK, it has to have been by means of proceedings; i.e. through a procedure acknowledged as valid in the law of the country in which it took place. I would suggest that divorce at the Thai embassy is not considered to be by means of proceedings under HK law.

I know it means additional expense, but I would seek the opinion of a family lawyer in the UK. In the interim, if you and your fiancée have been living together in either the UK, Thailand, or both, for 2 years or more, she can submit an application to the Home Office for permission to remain as your unmarried partner.

Scouse.

[yorkieb]

Dear Scouser

Thanks for your reply. I was kind off hopeing you would pick this thread up as one of the more informed member of the forum (no dis-respect ment to any others). Yes you are correct we find ourselfs in a burocratic cul-de-sac. Your suggestion is interesting. However regarding the 2 year duration we have cohabitated in the uk, 6 months in 2004, 6 months in 2005, 6 months in 2006 and 4 months in 2006/7. Do you think we would quailfy for the unmarried partner approach?.

In addition it has been confirmed today that my fiancee's ex-husband has remarried in Hong kong with the same thai divorce papers and with the additional aid of some form of guarantee fron a local HK solicitor, supporting the fact that he is free to remarry in Hk to a chinese lady. I have put this challange to the GRO, and enlisted a familty law solicitor in the UK. The GRO said that there hands are tied because that are only civil servant who have to follow case law and department guidelines however they are very interested in the fact that the ex has remarried without processing through the civil court. Maybe this is the work around the problem and they can give there concent.

Regards

Yorkieb

[the scouser]

Yorkie,

You've done the right thing, I believe, in going to see a brief. In relation to an unmarried partner's application, you have to have been cohabiting continuously for two years, with the exception of short breaks.

Scouse.

[GU22]

Most of this post deleted by author as it took me too long to type and is now irrelevant following the above two posts!

I feel that it may be worth applying to the IND for an extension of her fiance visa until this is sorted out. These are only issued in exceptional cases, but if your case isn't exceptional, what is?

Edited February 20, 2007 by GU22

[yorkieb]

Most of this post deleted by author as it took me too long to type and is now irrelevant following the above two posts!

I feel that it may be worth applying to the IND for an extension of her fiance visa until this is sorted out. These are only issued in exceptional cases, but if your case isn't exceptional, what is?

Thanks GU22

I have infact called the IND this morning and explained our situation. As we have started to fullfill the criteria of the fiancee visa by initiating the marrage process and have the documentation from the GRO they have advised that we could apply with a FLR(O) form in exceptional cases and without them giving any guarrentees of course, they would look at our case. They advise to apply a few weeks before the expiry of the fiancee visa (1st May) if not sorted out by then. Interestingly the GRO today told me today that in there opinion as we have fullfilled the criteria of the fiancee visa by registering our intention to marry and starting the process within the 6month period. Therefore she would not need to leave after 6months as things may be still going through. However ther IRD clarified that this would be only supporting evidence as to exceptional circumstances to extend and the marrage must be fully completed within the 6 month.

Waaaaaa. you need to be so carfull with all this stuff. cross reference all opinions and do your homework to win.

Anyway you advise on the FLR(O) is bang on ......thanks

YorkieB

[GU22]

Interestingly the GRO today told me today that in there opinion as we have fullfilled the criteria of the fiancee visa by registering our intention to marry and starting the process within the 6month period.

As you say, this does not fulfill the criteria of the fiance visa as to do that you do actually have to get married! Good job you checked with the IND and didn't take the GRO's word for it.

Obviously, the IND cannot give you a definite yes or no until you have made an application and they have all the facts, but I feel you do have a good case.

Best of luck.

[yorkieb]

Interestingly the GRO today told me today that in there opinion as we have fullfilled the criteria of the fiancee visa by registering our intention to marry and starting the process within the 6month period.

As you say, this does not fulfill the criteria of the fiance visa as to do that you do actually have to get married! Good job you checked with the IND and didn't take the GRO's word for it.

Obviously, the IND cannot give you a definite yes or no until you have made an application and they have all the facts, but I feel you do have a good case.

Best of luck.

Dear GU22/Scouse

By way of an update. We have absolutely no recorse in validating the divorce paper in HK or Uk other that doing the divorce all over again in either place which will take approx 6months. We would also as you said need to extend with an FLR(O). So having now realised our position I went back to the British embassy in BKK and asked the obvious, why did they issued the visa in the first place. Their answer was they made a mistake and it was an oversight as they had never had this type of case before. There advice is come back to BKK, marry in BKK and they will process us for a spouse visa and possibly waver the cost for us if I write to the boss and put a reguest to him. So it looks like that is what we will do. However I have one more question to get around this last option:

Could we marry in the thai embassy in the Uk. This would be a valid thai marrage I think as issued by them. Then could my new wife (in the eyes of Thailand) travel to BKK and submit her application for a spouse visa with all the usual docs and a letter explaining our case. And then reenter the UK. I am not trying to duck out of going over but we had planned for my fiancee to go back and visit her family in Thailand on her own in April any way. So we could kill two birds with one stone. What I am unsure of is would the uk embassy marriage certificate stand up in Thailand and also for the UK BKK embassy spouse apllication.

Regards

Yorkie

[the scouser]

Yorkie,

No, you aren't able to marry in the Thai embassy in London. It would appear as though you have to return to Thailand where your fiancée can formally divorce, and you can then marry. On the bright side, at least the embassy has admitted some culpability in the matter.

Scouse.

[GU22]

On the bright side, at least the embassy has admitted some culpability in the matter.

I wonder if it is worth speaking to a brief to see if you can in some way try to get the FCO to pay for the trip to Thailand? The embassy have admitted their error, and if they had not made that error then she would not now be in the UK and so would not need the extra expense of travelling to Thailand to sort it out.

(Don't mention that you were going to go anyway! )

[topfield]

With regard to the non recognition of divorces carried out at the Thai Embassy London (usually,) up to three / four years ago the Consular section of the British Embassy in Bangkok were freely handing out 'Declarations of Freedom to Marry' where one partner had obtained his/her divorce at a Thai Embassy having married in Thailand and where the husband was a UK national/resident.

After raising this matter with the Vice Consul , the Embassy after consulting London, agreed with my legal opinion and introduced a policy of non recognition of such divorces.

Please excuse my views on this subject but clearly the policy is correct.

If Anglo-Thai couples can obtain quickie Las Vegas type divorces at a Thai Embassy what of the sanctity of marriage and respect for the law (English law of course) ? ,

Should Thai wives of British residents obtain a lesser degree of protection than their English counterparts ?

The law was passed to protect married couples...Thai wives in particular, who should enjoy the same human and legal rights as any other wife in the UK.

Anyone disagree ?

[Ollie]

After raising this matter with the Vice Consul , the Embassy after consulting London, agreed with my legal opinion and introduced a policy of non recognition of such divorces.

Please excuse my views on this subject but clearly the policy is correct.

The law was passed to protect married couples...Thai wives in particular, who should enjoy the same human and legal rights as any other wife in the UK.

Anyone disagree ?

Did you get an MBE?

Interesting in that doesn't help the OP?!

[yorkieb]

As said not really that helpfull to my problem.

However moving on we will go back and try to marry and apply spouse visa. I have written a letter appealing for some kind of financial contribution to help with our cost directly retating to the error in administrating of the fiancee visa.

My question is has anyone on any kind of issue ever managed to get the embassy to put their hands in their pockects and take responsibility. Or do they just run and hide. Reading all the issues on this forum and to be fair few successes are diciussed here, I am not very hopeful and worried that i may be in more danger of making an enemy of the embasssy prior to making a new application. However (sorry to jump around ) but they have already granted a settlement visa (fiance) and the divorce doc is valid in Thailand.

Thanks

Yorkie

[Elianna]

Hi,

I happened across this forum while doing some research on Ridwan v Ridwan (related to the validity of polygamous marriages) - just wanted to know if your problem was resolved and how?

I would have thought that the divorce would have been recognized in the U.K, if not as a by way of a proceeding decree, then by a non-proceeding decree. Here is some information, I have no idea if it's helpful or useful but maybe just of interest:

Proceeding Decree

Section 46(1) of the Family Law Act 1986 provides that a divorce or separation decree obtained by means of judicial or other proceedings in a country outside the British Isles is entitled to recognition in England if a) it is effective under the law of that country and at the commencement of the proceedings, either party to the marriage was habitually resident or domiciled in, or was a national of that country.

According to section 46(5) of the Family Law Act 1986, domicile shall be determined by English law or by the law of that country in which the decree is obtained.

Section 47 of the Family law Act says that the findings by the foreign court shall be conclusive.

Non-Proceeding Decree

section 46(1) of the Family law Act 1986 also provides that a divorce or spearation decree obtained OTHERWISE BY MEANS OF ANY PROCEEDINGS IN A COUNTRY OUTSIDE THE BRITISH ISLES, will be entitled to recognition in England if

a) it is effective under the law of that country and

on the date on which it was obtained, either each party to the marriage is domiciled in that country or either party to the marriage was domiciled in that coutnry and the other party was domiciled in a country under whose law the decree is recognized as valid.

The only time it wouldn't be recognized is if either party to the marriage was habitually resident in the UK throughout the period of 1 year immediately preceding the date on which is was obtained (s.46(2)©)

The Royal Thai Embassy in HK would be considered within its own jurisidiction i.e. Thai jurisidiction, therefore, if the divorce was considered valid in thailand, then it ought to be recognized in England.

The relevant cases to look at would be Quazi v Quazi and Chaudry v Chaudry regarding divorce by way other than proceedings.

i couldn't find the section of the family law act that you cited, but based on what you said, i would have argued that 'jurisdiction' refers to the jurisdiction of the embassy - usually embassies reflect the laws of their own countries. And as you mentioned, at the time of the divorce, the liasing that was going on between the two embassies resulted in a valid divorce - as such what should be relevant is the above law.

hmmm....i'm not an expert but i'm surprised that it wouldn't have been recognized.

Okay well i'd be interested to know what happened!

-Elianna

[gburns57au]

She married in Bangkok....moved to HK and got divorced in the Thai Embassy in HK...The divorce is recognised in Thailand, the country the marriage was registered in....She has a divorce document stating the divorce as valid in Thailand. And the ex husband who in the same circumstances is free to re-marry in HK

Why does it need to be validated in the UK or HK ??

If the divorce is valid in the country that the marriage was registered in then surely that is all that is required.

Brit beaurocracy at its worst.

[paully]

I would have thought that the divorce would have been recognized in the U.K, if not as a by way of a proceeding decree, then by a non-proceeding decree.

The Royal Thai Embassy in HK would be considered within its own jurisidiction i.e. Thai jurisidiction, therefore, if the divorce was considered valid in thailand, then it ought to be recognized in England.

Elianna,

In the Radwan case, the court held that: "embassies are part of the host state", see http://webdb.lse.ac.uk/gender/Casefinaldet...52&pageno=5.

That's just the OP's problem - in effect his divorce came under Hong Kong jurisdiction not Thai jurisdiction and so the Thai divorce is not recognised in English law. It does seem like a bureaucratic nightmare, but there it is.

Edited May 21, 2007 by paully

[yorkieb]

Dear Forum

Sorry to say but our problem is not resolved.

We have argued the embassy juristdiction card but we are told buy the General registry office in the Uk that the exception to this rule is that in the case of births, deaths, marriages and divorces an embassy is under the juristdiction of the country it resides in. And as Hk follows the family law act as we do in the UK a divorce can only be recognised if processed by the court. Nobody in HK or UK disputes that the Thia divorce is valid in Thailand. However it is still not caperble of recognition in HK or the UK. We have what is technically termed a limping marriage still in place.

We have also studied the law that states that a divorce can be recognised without process however she was domicile in Hk when it was processed, so we are still stuck...... in addition that clause states that the divorce contracted without process should be valid in the country of issue. which in Hk it is not. There is however a paragraph that states that if the embassy is meerly acting as an agent then the actual divorce should be seen as one obtained in thailand and therefore not under the juristdiction of HK. However the divorce paper although passed back to Bankok to be processed has the official Royal Thai embassy stamp of Hong Kong on it. So were they acting as a agent or did they issue it. On the HK thai embassy web site they state that they are not a registry office only a facilitator. But the General registry office in the Uk argue that it was issued in Hk so tough. We cant even get it reissued in thailand and restamped in Bankok as that would constitute getting divorce again. It is not possible in thailand to get divorce twice.

We are currently proceeding a divorce petition through the UK court whilst fighting a deportation order from the Home office as her 6 month fiancee visa has expired and her application to FLR(O) has been refused.

Doesnt really seem very fair. After a 6 year relationship and an exemplory imigration record she only want to live in our country legitimatly, pay her tax and NI and make a position contribution to our society.

If she was a bl**dy muslin terorist they would let her in straight away and put her on the housing list. (no offence to muslim terrorist by the way)

Yorkieb

[yorkieb]

Dear Scouser

I have just been reading back through the thtread and you mentioned previously that if we had lived together for more than 2 years we could apply to remain as unmarried partners. Have checked with our solicitio because of the UK divorce petition and Domicile simply mean she want to make the Uk her permanent home and habitualy resident means that Uk home is he main residence. She has no residence in Thailand only stays with her mum when visiting.

She came to the Uk in 2004- 6 months tourist visa

2005 - 6 months tourist visa

2006 - 6 months tourist visa

2006 -07 six month Fiancee visa

Always living with me .....WOULD THE UK BE SEEN AS HER HABILUAL RESIDENCE OVER THE PAST 2 YEARS

maybe clutching at straws ...........?

Yorkeib

[the scouser]

"There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane he had to fly them. If he flew them he was crazy and didn't have to; but if he didn't want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle." - Joseph Heller, Catch 22.

Yorkie, if Joseph Heller were around today, he could write another bestseller based on the absurdity of the position of you and your fiancée.

Best of luck!

Scouse.

[paully]

Doesnt really seem very fair.

You can say that again, Yorkie, it's a right mess. Hope it will sort itself out for you and that you'll get a good result.

[the scouser]

Dear Scouser

I have just been reading back through the thtread and you mentioned previously that if we had lived together for more than 2 years we could apply to remain as unmarried partners. Have checked with our solicitio because of the UK divorce petition and Domicile simply mean she want to make the Uk her permanent home and habitualy resident means that Uk home is he main residence. She has no residence in Thailand only stays with her mum when visiting.

She came to the Uk in 2004- 6 months tourist visa

2005 - 6 months tourist visa

2006 - 6 months tourist visa

2006 -07 six month Fiancee visa

Always living with me .....WOULD THE UK BE SEEN AS HER HABILUAL RESIDENCE OVER THE PAST 2 YEARS

maybe clutching at straws ...........?

Yorkeib

I'd need to know the precise dates to form an informed opinion. However, domicile and place of habitual residence have no bearing upon whether someone qualifies as an unmarried partner; the requirement is to show that you've lived together as a married couple would do.

Whilst I'm on, you also need to be sure in your own mind what you mean by deportation. It may seem a technicality, but it is quite relevant. Is the BIA seeking to require your fiancée to leave to UK, or are they actually threatening to serve her with a deportation order?

Scouse.

[yorkieb]

Dear Scouser

I have just been reading back through the thtread and you mentioned previously that if we had lived together for more than 2 years we could apply to remain as unmarried partners. Have checked with our solicitio because of the UK divorce petition and Domicile simply mean she want to make the Uk her permanent home and habitualy resident means that Uk home is he main residence. She has no residence in Thailand only stays with her mum when visiting.

She came to the Uk in 2004- 6 months tourist visa

2005 - 6 months tourist visa

2006 - 6 months tourist visa

2006 -07 six month Fiancee visa

Always living with me .....WOULD THE UK BE SEEN AS HER HABILUAL RESIDENCE OVER THE PAST 2 YEARS

maybe clutching at straws ...........?

Yorkeib

I'd need to know the precise dates to form an informed opinion. However, domicile and place of habitual residence have no bearing upon whether someone qualifies as an unmarried partner; the requirement is to show that you've lived together as a married couple would do.

Whilst I'm on, you also need to be sure in your own mind what you mean by deportation. It may seem a technicality, but it is quite relevant. Is the BIA seeking to require your fiancée to leave to UK, or are they actually threatening to serve her with a deportation order?

Scouse.

Dear Scouse

We received a letter of refusal for the FLR(O). It stated that she was asking to remain to do something(eg uk divorce) which was outside the terms of the fiancee visa that was originally granted. Plus in there opinion it was not necessary to remain in the Uk whilst the Uk court is processing the divorce. They advised in the letter that she must now make arrangement to leave the UK. However they gave no time limit, stated that she would be removed if we ignored them and noted that we had very little grounds for any appeal as we were attempting to stay for a reason outside the remit of the fiancee visa. They did mention that if we had any further papers we should send them in. So we consulted our solicitor who has written to them stating that for the Uk courts to have juristdiction it is essential that she be habitualy resident and domicule in the Uk and therefore must remain, in addition she may need to be present in front of a judge here. He also stated that she is only attempting to comply with the Uk's requirement to recignise her Thai divorce paper and complete the terms of her fiancee visa......Letter went off 1 week ago... awaiting reply. ( I did call the home office help line and was informed that it wes usual to enclose appeal forms and time scales with all refusals and as we didnt get this it was probable that they expected us to make some more material available)

Regarding dates

June - November 2004 Tourist

June - November 2005 Tourist

March - August 2006 Tourist ( On the 3rd Tourist visa they told her that she must be fincee next time as she couldnt use the 6 month tourist visa as way of permenently living in the UK)

Nov - April 2007 Fiancee

April 2007 - Still here!!!!!!!!!

P.S we have been living as husband and wife since 2004. At each address since 2004 (3 rented, now homeowner but in my name) I took the steps to register her on half of the utilities and we have had a joint bank account since 2004. My decree absolute came through in september 2006 but I was seperated and divorced pertitioned in Feb 2004.

Hope this is the information that you needed.

Yorkieb

[the scouser]

Yorkie,

I have to be careful here, because I don't want to tread on the toes of your solicitor. If he's not an immigration specialist and he wants to give me a ring then my office phone number is on the website.

At face value, you have about 5 months in the last two years when you haven't been together. The immigration rules say that short absences are acceptable, but I don't think 5 months would wash. Additionally, for your fiancée to make an unmarried partner's application without having to leave the UK, she would have to currently be lawfully in the U.K., and, given her current circumstances, she's not. Therefore, even if you were in a position to make an unmarried partner's application, it would still have to be by means of applying for a visa at the embassy in Bangkok.

Scouse.

[yorkieb]

Yorkie,

I have to be careful here, because I don't want to tread on the toes of your solicitor. If he's not an immigration specialist and he wants to give me a ring then my office phone number is on the website.

At face value, you have about 5 months in the last two years when you haven't been together. The immigration rules say that short absences are acceptable, but I don't think 5 months would wash. Additionally, for your fiancée to make an unmarried partner's application without having to leave the UK, she would have to currently be lawfully in the U.K., and, given her current circumstances, she's not. Therefore, even if you were in a position to make an unmarried partner's application, it would still have to be by means of applying for a visa at the embassy in Bangkok.

Scouse.

As usual thanks for your valuable advise. It was worth exploring on the off chance.

Cheers

Yorkieb

[Crossy]

Just a dumb thought from an engineer with zero experience of immigration law (wifey does not want to live in the UK, too cold).

Since the lady in question has a divorce that is valid in Thailand as does the OP, can they not simply go to the Kingdom and marry there all legal and above board?

Then get a spouse visa. Or is this likely to raise the red flag at our wonderful (not) embassy in BKK?

[paully]

^ Unfortunately not, it seems:

However it is still not caperble of recognition in HK or the UK. We have what is technically termed a limping marriage still in place.

But the General registry office in the Uk argue that it was issued in Hk so tough. We cant even get it reissued in thailand and restamped in Bankok as that would constitute getting divorce again. It is not possible in thailand to get divorce twice.

It really is a mess for poor Yorkie to sort out. You only live twice but you can get divorced just the once in Thailand.