Am I losing my UK born child?

[philemon_bodiba]

Hi.

I am a South African national on a 5 year Residence Card and my wife is an EEA National - Portuguese. We have been married for more that a year a year now and have a 11 months old baby.
My wife has filed for divorce after saying our marriage is not working and she does not want to live with me no more.

Now, does divorce mean I will lose the right of access to my child and leave the UK?

Looking forward to hearing from you.

Thanks....

[John]

You have a retained right to continue to live in the UK as long as the marriage lasts, until the Decree Absolute ends the marriage, and even after that as long as :-

the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom

In other words, as part of the divorce proceedings, you need to ensure that you get that access order, with a specific condition that such access needs to be in the UK. That way you can stay in the UK, and even get PR status after 5 years in the UK.

[sakura]

You have a retained right to continue to live in the UK as long as the marriage lasts, until the Decree Absolute ends the marriage, and even after that as long as :-

the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom

In other words, as part of the divorce proceedings, you need to ensure that you get that access order, with a specific condition that such access needs to be in the UK. That way you can stay in the UK, and even get PR status after 5 years in the UK.

But the issue is also what nationality is the child. Of course being born here doesn't give any automatic right - philemon_bodiba, what nationality/nationalities is your child? Is it British? I am only asking, because if the mother, for example, chooses to return to Portugal, I don't think the UK courts would have much power.

As for remaining in the UK...how long have you been married and/or on the EEA permit?

[JAJ]

But the issue is also what nationality is the child. Of course being born here doesn't give any automatic right - philemon_bodiba, what nationality/nationalities is your child? Is it British?

Child will probably be a Portuguese citizen, and can probably be registered as South African. Child will also be British if the mother had been living/working in the U.K. for 5 years before it was born.

Otherwise child can be registered as British once either parent has clocked up 5 years on EEA/EEA-FP status.

I am only asking, because if the mother, for example, chooses to return to Portugal, I don't think the UK courts would have much power.

In fact the child's country of residence is normally more important under international law (Hague Convention, assuming Portugal is signed up).

The original poster should get legal advice from a Portuguese lawyer (or the Portuguese Embassy) on whether it's possible to prevent the mother obtaining a Portuguese passport (or identity card) for the child. This would not affect the child's nationality status.