Recognition of Overseas Unilateral Divorce after K v K: The Implications for Divorced Spouses’ and Child Dependants’ Financial Support, State Welfare & Public Policy

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The article provides a critical analysis of the system by which unilateral divorce effected overseas, and in accordance with the law, custom and practice of the country where the divorce is carried out, can be recognised in the UK. This is generally on the application of the divorcing spouse to the UK courts, as seen in the K v K case. As part of the analysis the impact of the divorce on the divorced spouse, and on the welfare of children and other family dependants in the same household as the divorced spouse (typically older relatives), is considered. The wider policy implications of such divorces and their recognition is also discussed, especially in cases where spousal or child maintenance provision has not been made (or it is inadequate to meet the divorced spouse's and family's living costs), and where support from the State welfare system is then needed. Such support can take a variety of forms, such as social security benefits and tax credits, and local authority social housing, community care services. Given that the family members may not be UK or EU nationals, it looks at the difficulties they may encounter in accessing such support if they do not have (or have but cannot retain) 'residence' rights following the divorce. This can be particularly problematic where the divorced spouse resided in the UK on the basis of being a 'family member' of the husband who has effected the unilateral divorce, and where the divorced spouse does not come within one of the narrowly defined categories permitting retention of a right to reside. As in other contexts, 'residence' is increasingly the gateway to State welfare support. Without the requisite residence status, or an EU-based 'right of residence', families may be caught between two hard places: a lack of private support and maintenance from the divorcing spouse (or other potential sources, including assistance from faith communities and charities) and the State welfare system.

A residence right for parents may be demonstrated on the basis of a fast-developing 'derived residence' alternative. This may enable a non-UK/non-EU national to acquire residence on the basis of being the carer of a child, for example if the child has entered the UK education system and is entitled to complete his or her education, and be cared for by a parent while that happens. However, as the article considers, this can be difficult to establish, as can other alternatives based on children's residence entitlements.

European Union law aspects of the subject, and case law developments in recent leading cases like Ibrahim and Teixeira (in the European Court of Justice) are considered.