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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10187
Experience:  Barrister 17 years experience
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Hello, I am a Ukrainian citizen married to EU citizen back

Resolved Question:

Hello, I am a Ukrainian citizen married to EU citizen back in 2011 in Ukraine. In Apr 2012 I joined him in Ireland as his spouse (stamp 4).
I am employed since Jul 2012 and able to support my living on my own.
My question is would I be able to stay legally in Ireland in case of coming soon divorce/separation. And what would be the procedure of divorce (in which country, what are the terms etc.).
Thank you
Submitted: 3 years ago.
Category: Law
Expert:  Buachaill replied 3 years ago.

Buachaill :

1. In Ireland a married couple have to be "living apart" for four years before a divorce is granted. Accordingly, even if you separate from your husband, you will still remain married to him for a further four years under Irish law. This assumes that you do not apply for a divorce in the Ukraine and nor does your husband in the intervening four year period. The continued marriage to your husband will therefore continue to form the basis for the renewal of your spousal visa for another four years. It is also important and of relevance that you will not be a burden on the State and will be able to support yourself. Accordingly, whilst you can separate from your husband, you cannot divorce him until you have been lawfully resident in Ireland for five years. This is because you need to be five years out of the previous eight years continuously resident in Ireland in order to be able to apply for permanent residence in Ireland or Irish citizenship. If you loose the right to remain in Ireland owing to divorce before those five years are up, then you will have to leave Ireland, as the basis for your spousal visa will no longer exist.

Buachaill :

2. In case I made it clear divorce can occur either in Ireland where you are both now resident or in the Ukraine, where the marriage was celebrated. Each country has its own divorce laws. I have set out the fact that in Ireland the spouses have to be living apart for four years before a divorce is granted. You should find out yourself what the rules are in the Ukraine.

Buachaill :

3. Accordingly, you should seek to remain in employment and not loose your job as this could also constitute grounds for you to be forced to leave the State if you separate from your husband and get divorced before the five years lawful residency in Ireland by you have occurred.

Buachaill :

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Customer:

Hi, thank you for your answer. If I understood it right, in case we decided to separate we have to notify Bureau of Immigration and Naturalization and I still can live and work in Ireland, is that correct?

Customer:

Also I would like to know which law should be applied: Irish or Ukrainian, so far as I know in Ukraine divorce can be registered in few months time. Please advice.

Customer:

Thank you

Buachaill :

4. There is no requirement to notify the Irish Naturalisation & Immigration Service if you are merely living apart without formally entering upon separation or divorce proceedings. It is in your interest not to issue separation or divorce proceedings. It is also in your interest not to notify the INIS if separation proceedings are started, as there is no such requirement in Irish statute law. If you start formal legal procedures for divorce you then need to notify the INIS. So in case you misunderstood the advice I have been giving, you should NOT start separation or divorce proceedings before the five year period is up. Finally, either Irish or Ukrainian law can be applied to divorce your marriage. It depends on which law the parties invoke. There is no single law applicable here as a divorce application can be lawfully brought in Ireland or the UKRAINE.

Buachaill :

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Customer:

If my husband will start any of legal proceedings what would be my options?

Customer:

Also it surprises me that there is no requirements to notify INIS as even on the Residency Letter which I received with my GNIB card it's written that I have to inform about any changes in our relationship otherwise high fee applies as minimum.

Customer:

"So in case you misunderstood the advice I have been giving, you should NOT start separation or divorce proceedings before the five year period is up"

Customer:

Then what did you mean in p.1, writing about 4 years separation period before divorce can occur?

Customer:

I would like to know if I would be able LEGALLY to stay in Ireland on my own in case we decide to stop our relationship, to live apart etc.

Customer:

Thanks again, I just want to get it right

Buachaill :

5. At the outset, there is a difference in Ireland between (1) living apart from your spouse (2) separation, in the legal sense (3) divorce. You seem to have difference understanding the difference between them. I have given you advice that it is legally OK to live apart from your spouse. This is (1) above. I have told you not to apply for a separation (legal) or a divorce. These are options (2) & (3) above. Either of these options will have a negative effect on your legal right to remain in Ireland. Whilst there is an obligation to report the grant of a divorce or the grant of a legal separation to INIS, the same does not apply if you are merely living apart. Number (1) above.

Buachaill :

6. You need to realise that you are only in peril if a divorce is granted. Legal separation is a half way house which does not automatically terminate your right to remain in Ireland. However, it would be preferable (but not essential) if your husband does not apply for a legal separation. It does not matter if your husband applies for a divorce as four years have to elapse while you live apart before a divorce will be granted. By that time the necessary five years lawful residency in Ireland will have been fulfilled by you and you will get a permanent visa or citizenship.

Buachaill :

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Buachaill, Barrister
Category: Law
Satisfied Customers: 10187
Experience: Barrister 17 years experience
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