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Divorce, spousal visa and children

amy123
November 13, 2009 12:22:37 PM CET

Can someone advise on the following scenario...

A couple are married in an EU country.
One is an EU citizen.
One is not an EU citizen - but from a "Western" country.
They have a child together. Child is an EU citizen.
Family move to Nethelands.
Non-EU partner gets a spousal visa.

What happens to the Non-EU partner if they get a divorce?

Specifically - what visa is the non-EU partner entitled to, given that the child is an EU citizen and can't be taken out of the country without both parent's agreement?

Thanks.
mvn
- 3960 posts
November 13, 2009 1:58:10 PM CET

amy123 (Nov 13 2009, 01:22 PM) said: > original post
Can someone advise on the following scenario...

A couple are married in an EU country.
One is an EU citizen.
One is not an EU citizen - but from a "Western" country.
They have a child together. Child is an EU citizen.
Family move to Nethelands.
Non-EU partner gets a spousal visa.

What happens to the Non-EU partner if they get a divorce?

Specifically - what visa is the non-EU partner entitled to, given that the child is an EU citizen and can't be taken out of the country without both parent's agreement?

Thanks.

Not enough info.
Dates, length of relationship, what visas have been utilized?
tudor_geo
- 736 posts
November 14, 2009 3:51:42 PM CET

About the divorce: for immigration purposes she will continue to be seen as a partner of an EU citizen, according to the EU directive 2004/38/EC. So, divorce does not mean she loses her right to stay. But, if she asks welfare (bijstand), she will lose her right to stay here.

About removing the child from the Netherlands without having the written consent of the other parent: that is kidnapping. See a similar case on http://news.yahoo.com/s/ap/20091015/ap_on_..._custody_battle

In general, thereupon is of application the convention against international kidnapping, see http://www.hcch.net/index_en.php?act=conve....pdf&cid=24 and http://www.hcch.net/upload/abductoverview_e.pdf
amy123
November 16, 2009 1:32:40 PM CET

Yes - I know about the parental kidnapping stuff.

So, according to EU laws, a person cannot be thrown out of the country due to divorce, but in reality the Dutch government would cancel the spousal visa?

And the real question I was originally trying to ask is...

Is there not a specific visa for the case where two adults get divorced, the spousal visa is consequently cancelled, but there is a child (minor) involved?

I know there are probably other visas a person might qualify for. But I thought there must be something specific to this scenario - I'm sure it's not uncommon.
avocado
- 632 posts
November 18, 2009 1:18:07 PM CET

amy123 (Nov 16 2009, 01:32 PM) said: > original post
Yes - I know about the parental kidnapping stuff.

So, according to EU laws, a person cannot be thrown out of the country due to divorce, but in reality the Dutch government would cancel the spousal visa?

And the real question I was originally trying to ask is...

Is there not a specific visa for the case where two adults get divorced, the spousal visa is consequently cancelled, but there is a child (minor) involved?

I know there are probably other visas a person might qualify for. But I thought there must be something specific to this scenario - I'm sure it's not uncommon.

Yes, this scenario is what we lawyers specialized in EU migration law call the 'Zhu and Chen' situation, after the name of a decision from the European Court of Justice. A minor child who is an EU citizen has a right to be accompanied by his/her non-EU parent; otherwise the child's right to stay in the EU would be illusory with no one to take care of him/her. [Zhu and Chen were children born in Northern Ireland of Chinese parents; because Zhu and Chen were automatically Irish citizens by birth, their parents had to be granted residence permits to stay with them in the UK.] As long as you still have joint or sole custody of your child, you should be able to demand a residence permit from the IND. Do get professional assistance in doing so, however. In your situation, there is the tricky aspect that your child does have one EU citizen parent in the Netherlands, so your child would not be completely abandoned if you did not get a residence permit.

In any case, you have a right to 'continued residence' as the ex-spouse of an EU citizen if you were married for 3 years or more and if at least 1 year of your marriage was spent in the Netherlands. It's not entirely true that you would be kicked out if you were to apply for public assistance; you would be essentially treated like an EU citizen with such a permit, meaning that you would be obliged to show that you are either working or that you are otherwise self-supporting. An application for public assistance would be viewed in terms of what your work history is.

Jeremy Bierbach, LLM
www.immigrate.nl

Jeremy Bierbach, LLM
www.immigrate.nl
amy123
November 19, 2009 1:19:32 PM CET

Thanks Jeremy.

I knew someone would know the answer
aminata
- 8 posts
December 2, 2009 2:46:00 PM CET

This website has an english forum on it. They're bound to know the answer. You'll find loads of info on there anyway.

www.buitenlandsepartner.nl
shawnfactor
December 16, 2009 12:56:07 PM CET

Very helpful thread. Ironically enough I am in the same situation. My ex. is Dutch, we have a son who is also a citizen, and I am here on a partnership permit. We were not going to get divorced, but we contacted the IND and they stated that if I had a court ordered visitation from a Dutch judge that they could not just make me leave.

I guess my question would be is when my renewal comes up, should I get some legal advice and go through another process to switch over my reason for staying? Or should I just pay the renewal fee and go about my business?
mkitchell
December 16, 2009 1:49:04 PM CET

amy123 (Nov 19 2009, 12:19 PM) said: > original post
Thanks Jeremy.

I knew someone would know the answer

You just got some very valuable free legal advice. Jerry is really nice to help you like that.
avocado
- 632 posts
December 16, 2009 1:57:57 PM CET

shawnfactor (Dec 16 2009, 11:56 AM) said: > original post
Very helpful thread. Ironically enough I am in the same situation. My ex. is Dutch, we have a son who is also a citizen, and I am here on a partnership permit. We were not going to get divorced, but we contacted the IND and they stated that if I had a court ordered visitation from a Dutch judge that they could not just make me leave.

I guess my question would be is when my renewal comes up, should I get some legal advice and go through another process to switch over my reason for staying? Or should I just pay the renewal fee and go about my business?

Note that the rules are completely different if your ex is Dutch and not an EU citizen from someplace else, so the advice I gave above does not necessarily apply in that case. Definitely get legal advice so that all of the details of your case (especially how many years you have already been here) can be taken into consideration.
sandraandesther
December 16, 2009 3:04:49 PM CET

From my own personal experience, Jeremy is a fantastic lawyer. He is working on my case now, and I would highly recommend him. Jeremy knows the laws well, is honest and tells you like it is, no B.S.
smm357
- 1 posts
November 2, 2011 9:34:44 AM CET

I read above that you can apply for a visa on your own after you have been married for more than three years. Is that 3 years from when you registered as partners, received my partner visa or the date we got married?
avocado
- 632 posts
November 2, 2011 11:29:03 AM CET

smm357 said:
I read above that you can apply for a visa on your own after you have been married for more than three years. Is that 3 years from when you registered as partners, received my partner visa or the date we got married?

From when you applied for your partnership residence permit (note: not when you actually got it in your hands, because when it was granted, it was granted retroactively to the date you applied for it).

Or another way to quickly and fairly reliably calculate when the 3-year point is: if you are on the 5-year permit now (as you should be after you renewed your initial, 1-year permit), look at the expiration date and subtract 3 years.

Note that you do have to pass one of the integration exams first before you can get this independent status ("voortgezet verblijf").
Deleted Member
- 4 posts
December 30, 2011 3:02:25 PM CET

I am looking for support groups to exchange problems during a divorce in the Netherlands. I am a British citizen divorcing from a Dutch man. I have come across illogical reasonings in the law here. It seems that the woman just has no rights here! no one or any legal people seem to be able to help me and I don't think my situation is that unique: I am a woman who has left HIM and left the house ... but this has caused a whole lot of problems ! help please
lint
- 1 posts
June 17, 2012 12:00:48 PM CEST

elaine said:
I am looking for support groups to exchange problems during a divorce in the Netherlands. I am a British citizen divorcing from a Dutch man. I have come across illogical reasonings in the law here. It seems that the woman just has no rights here! no one or any legal people seem to be able to help me and I don't think my situation is that unique: I am a woman who has left HIM and left the house ... but this has caused a whole lot of problems ! help please

Hi Elaine, can you please share what is happening I am in similar situation. He is divorcing me however the barn house that was purchased is unlivable. I am in a delimma if I should register myself in that new place? I do not know what are the effect of registration and deregistration here in the Netherlands? What are the illogical reasonings that you encountered when you left him in court? I've been 1+ yrs I do not want to be seen as leaving the marriage. Thank you......