Formation and breakdown of marital relationships: an immigration and family law perspective

Amna Ashraf, our head of family immigration, and David Coutts, a director in family and divorce team, are penning a three-part blog series covering the legal dynamics involved in the formation and breakdown of relationships where one partner is a foreign national and there are children and assets to consider. 

In this first blog, we will cover all things formation – marriage, civil partnerships, location, visas, pre-nup, and the acquisition of assets. 

Who can get married or enter into civil partnerships in Scotland?

In Scotland, if you are aged 16 or over and in an opposite sex or same sex relationship, you can get married as long as you are not married or in a civil partnership with someone else, not closely related to each other, you are capable of understanding what marriage means, and you both consent to the marriage.

Getting married in Scotland

In Scotland, marriages will commonly take place in churches, registration offices, and venues like hotels and castles. However, in law, a marriage can take place almost anywhere as long as you have a religious or registered celebrant, and for outdoor private venues, the landowner’s permission. That can lead to the incredible opportunity to utilise the great Scottish outdoors, which attracts couples from all over the world. Just make sure you have two adult witnesses with you!  

An important step to take is registering the Marriage Notice M10 form, or the CP10 form if registering a civil partnership, together with details of your witnesses and celebrant. You must do this at least 29 days prior to the ceremony date but the prudent advice is to do this between 10-12 weeks prior to your intended wedding date. This is especially important if you are a non-UK national, as the minimum 29-day period can be extended to 70 days if the registrar refers your case to the Home Office for immigration checks. 

For UK nationals, you will be required to provide proof of your ID and residence, along with the registration fee. If you are a non-UK national, you also need to complete a Declaration of Status by Non-UK Nationals Form and, if relevant, foreign divorce/dissolution questionnaire. You may also be required to produce further requested documents to support your position. 

At all times, the Scottish Government website and local council offices are there to guide couples through the process. 

Visas

Where one partner is a foreign national without indefinite leave to remain in the UK, they can get married in the UK in one of three situations. 

• Apply for a marriage visit visa which allows entry for six months for the primary purpose of getting married, with tourism also allowed. They must return to their country of residence within the six months.
  
  
• Apply for a fiancé visa with a view to starting the spousal route once married. This is also for six months, although there is no requirement to return to their current country of residence once married and switching to a spousal visa is allowed from inside the UK.
  
  
• Where a couple is already married abroad, they can apply for a spouse visa to come and live in the UK. This is initially granted for 33 months and can be extended once for a period of 30 months. After completion of 60 months (five years), the applicant can apply for settlement. 

Prenuptial agreements

In advance of a wedding, couples may wish to consider entering into a prenuptial agreement. These are agreements which assist in protecting premarital assets or wealth from claims in the event of separation. We would always advise that a prenuptial agreement is discussed and prepared in good time to allow signature around one month or so before the wedding day.

Matrimonial property

In Scotland, when a couple marries, “matrimonial property” starts to accrue. Matrimonial property is all property acquired by a couple between the date of marriage and the date of separation. This applies to all assets (and debts) whether held in their sole name or joint names, subject to a few exceptions that we will explain. Therefore, if a couple never separates, they may never have considered, nor needed to consider, whether their assets are “matrimonial property” or not. However, if a couple does separate, what is, or is not, “matrimonial property”, and the value of that property, can be of the utmost importance. It is the value of these assets which is then subject to a fair division as part of the financial separation. We will discuss this process and how fairness is achieved in our next blog.   

There are exceptions to assets which form “matrimonial property”, those being a family home purchase prior to the marriage (which is discussed further below) and assets received by way of gift or inheritance from third parties which have not changed form. By this, we mean that where an asset does not change from the day it was received, it will be excluded from the matrimonial property accrued. To illustrate this, if a spouse inherited a house from their parent and the house remained on separation, the house would not be “matrimonial property”. However, if the house was sold and the proceeds were used to purchase a holiday home in Spain, the holiday home in Spain would be “matrimonial property”. 

Where this situation has occurred, the starting point is the inclusion of the value of the new asset within the value of the matrimonial property. However, discretionary arguments in law exist to seek “credit” back for the value of that asset, something we will cover in our next article.  

Matrimonial home

In Scotland, the “matrimonial home” is the intended family home – i.e. where a couple and any children principally live together as a family. The matrimonial home can be purchased prior to the actual marriage if it was a home purchased with the intention of becoming the family home. The intention at the point of purchase is key. This is the case regardless of whether the property was purchased in joint names or in either spouse’s individual name; contributed to equally or solely; and if there is a mortgage, again, jointly or solely held.

In Scotland, a non-UK national can purchase a property if they are buying this outright, however purchasing via a mortgage is only available in certain situations and availability varies from lender to lender. We are covering this in more details in another blog. 

Postnuptial agreements 

During the course of the marriage, a couple can enter into a postnuptial agreement. Postnuptial agreements can do many things. They can deal with potential separation, in a similar vein to prenuptial agreements, where, for example, a couple hadn’t entered into a prenuptial agreement prior to the marriage. They can be used to revisit or update prenuptial agreements where circumstances may have changed during the marriage in a way not contemplated at the time the prenuptial agreement was entered into. They can also deal with the treatment of specific assets acquired during the marriage, for example, ringfencing a gifted or inherited asset from converting into “matrimonial property” after it has been acquired.   

Prenuptial and postnuptial agreements are valuable financial planning instruments and whilst the hope is that they will never be needed, they should always be kept under review throughout a marriage to ensure they continue to meet the couple’s needs. 

If you would like advice on any aspect of your immigration or family journey, whether you are already married or intending to do so, please contact Amna Ashraf and David Coutts who will be happy to talk you through any concerns, ensuring you are fully prepared for the journey. 

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