When a couple separates or divorces, there are financial implications which will directly impact both sides of the family unit.

Where one parent is a migrant with a visa based on the relationship, they have additional factors to worry about. Amna Ashraf from our Immigration Team and Nilah Ulhaq from our Family Law Team look at some common queries in respect of finances during a breakdown of a marriage or relationship.

Right to work for the migrant partner

Under the Immigration Rules, a partner is defined as someone who is either married or in a cohabiting relationship with a British citizen for a period of two years. Those who have entry clearance as a partner have the exact same rights as those who were granted leave to remain in the UK as a partner. Both permission types afford the right to work should the migrant choose to do so. This right to work would cease when the permission to enter/remain in the UK under the partner visa ceases. Therefore, the migrant would need to ensure they switch to a different visa in order to preserve the right to work.

Right to financial support for the migrant partner

In Scotland, spouses have a duty to financially support the other until the point of divorce. In some cases this duty can be extended beyond the point of divorce. Spouses can agree between them the level of financial support which will be paid (if any). Where spouses cannot agree, the spouse who is seeking the financial support can make an application to the court. The application can be made as part of divorce proceedings or as a stand alone application (if prior to divorce).

When considering an application for financial support prior to divorce (aka “aliment”), the court will consider: the needs and resources of the parties, the earning capacities of the parties, and all other circumstances of the case.

There is no right to financial support if a couple are cohabiting together but are not married.

Switching to other visa categories

Work permissions are an integral part of most visa categories that the migrant can switch into. If they find a new partner who is holds indefinite leave to remain or British citizenship, the migrant can get married to them following divorce and apply on the basis of the new partner. The new partner would need to satisfy the financial requirements for the new application (e.g., show salary of £18,600 gross per annum in order to show they can provide for themselves and their migrant partner). Once the migrant obtains permission based on the new partner, they have the right to work and will have the option of meeting the financial requirements for the visa extension themselves.

The migrant can also switch into other categories such as a skilled worker visa (based on finding a company who has a sponsor licence and is willing to sponsor the migrant for a defined role and salary), parent of a British child visa (where the couple have at least one child together who is British and the migrant either has full custody or direct contact), student visa or one of the investment-based routes.

The split of assets upon divorce

In Scotland, spouses are entitled to share in the fruits of the marriage upon their separation and subsequent divorce. As a general rule, any assets or debts acquired from the date of marriage until the date of separation form part of the “matrimonial property” which is capable of division between the couple. It does not matter which spouse’s name the assets or debts are in.

For most couples, the family home is the most significant asset. If the family home was purchased prior to the marriage for the purpose of using it as a family home then it will still form part of the “matrimonial property”. Any assets which were gifted or inherited by either spouse from third parties will not constitute matrimonial property.

When it comes to dividing the matrimonial property, the starting point is that it will be divided fairly, which usually means equally, unless there are special circumstances justifying an unequal division. Special circumstances can include, for example, where one spouse has funded matrimonial property from gifted, inherited or pre-marital assets.

Migrant partner in an abusive relationship with no personal funds

On the immigration front, if they hold a spousal visa or leave to remain, they can apply for indefinite leave to remain if it can be proven that their relationship broke down as a direct result of domestic violence. The migrant would not need to show savings or meet the income threshold. They would have the option of applying for a fee exemption. In addition, the migrant would be able to apply for an initial visa of 3 months which gives them access to public funds. This would enable them to move out and seek council housing, get access to benefits, and work.

If the main application is granted, they would get indefinite leave to remain which means they can stay in the UK permanently and their right to work is no longer determined by their marital status.

Maintenance for any children in the family

Separated parents can agree child maintenance payments (if any) directly themselves, or with the help of a solicitor. If parents cannot agree, then either can apply to the Child Maintenance Service (the CMS) for an assessment. The CMS is a government body which calculates and enforces child maintenance payments. If an application is made to the CMS they apply a statutory formula which takes account of the payer’s income and the number of nights that children spend with the payer.

Child maintenance is payable for children who are (1) under 16 years old or (2) under 20 years old if they are in full-time education up to Highers or the equivalent.

In some cases, an application for maintenance can be made to a court. For example, if the paying parents earns over £3,000 per week then the receiving parent can apply to a court for “top-up” maintenance. Additionally, a court application can be made for maintenance of a child who is aged 18 to 25 if they are enrolled in an educational establishment or vocational training. Such applications need to be made by the child, and not by the other parent.

For further advice, please do not hesitate to get in touch.

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