UK born - want to marry Malaysian

[EllUK]

I am hoping someone here can give me some advice for my issue. The short version is that I (a UK born citizen) wish to get married to my girlfriend (a Chinese-descent Malaysian).

Of course this would be simple enough if these were the only factors, but there are many other things to consider, hence my posting here. The list is quite long:
She has been in the UK for eight years (overstay).
Before she came to the UK, she was married to a man in Malaysia. The marriage had broken down before she came to the UK, but they did not get divorced then.
There are children from this marriage, and she is in regular contact with them. They are staying with her parents (their grandparents), and she regularly sends money home to support them.
There is a property in Malaysia in hers and her husband’s name.
She has informed her husband that she wishes to divorce – he is refusing to file any paperwork to facilitate this.


I realise that there are legal issues with some of the above factors, but putting these aside, what are our options? We have sought some advice from others, from the Internet, and from what we gather, the steps we need to take are:
At some point, she needs to return to Malaysia to file paperwork necessary to divorce her current husband.
During this time, I will likely need to go to Malaysia in order to have evidence that we have met in person.
After the divorce, I need to apply for a spouse Visa (I do exceed the salary requirements for this). If this is approved, she can legally come to the UK, and we can marry.

I realise the above is a best-case scenario, and it’s likely it won’t be that simple. There has been suggestions that after the divorce, I should travel to Malaysia in order to marry her there, and this may make it easier to get the spouse Visa for the UK.


So, the main question comes down to whether it is possible I can marry her? If so, is there anything else we need to consider or do, or will the steps listed above be enough?
As she has overstayed here, would this end up being counted against her in some way if it comes to a spouse Visa application in the future? Her passport would be renewed in the meantime.
Would she have any problems getting out of the UK, given that she overstayed?

Thank you for taking the time to read this, and for any advice you can give.

[secret.simon]

For her to be eligible to apply for a spouse visa, she will need to be "free to marry" on the date of your marriage. Otherwise, the Home Office will not recognise the marriage as the basis of a spouse visa.

So, unless she gets a decree absolute (not a decree nisi) from a Malaysian court, don't even think of getting married. It will not count.

[Casa]

You mention travelling to Malaysia to prove that you have met. Surely you have evidence of the relationship here in the UK?
As long as she hasn't 'frustrated the Immigration rules' by working with false documents, use of NHS etc., the overstay alone shouldn't trigger a ban.
However, it would affect her entitlement to British citizenship in the future with an extended qualifying time.

[EllUK]

Thank you both for the advice. She would be seeking the decree absolute when she returns to Malaysia (as far as I understand from basic talks with Malaysian lawyers, the divorce can only be done in Malaysia), and as this is likely to take several months, I will be visiting there at times.
We have many photos of our time together in the UK, but the main concern with this is that it is also proof of her overstay - the thought being that this would count against any Visa application.

I wouldn't say that her being here is a 'frustration to the immigration rules' (although this is my own opinion, and may be seen differently by others). She has not used the NHS or other public services, and has not been working under false documents (without going into details, the company knows her status and has several people working in the same way, with conditions/pay that no UK/EU person would agree to).

But, from what has been said, there does not appear to be any major issues with us getting married and applying for a Visa for her to stay as my spouse. If this is correct, at least we can relax a little.

Thank you.

[CR001]

I wouldn't say that her being here is a 'frustration to the immigration rules' (although this is my own opinion, and may be seen differently by others). She has not used the NHS or other public services, and has not been working under false documents (without going into details, the company knows her status and has several people working in the same way, with conditions/pay that no UK/EU person would agree to).

She is indeed 'frustrating the immigration rules'!! She is working without the right to work in the UK, regardless of who or under what conditions she is working or whether her employer is aware of her visa status (or lack thereof), she is being exploited!

The fact that she is working illegally will have an adverse effect on applications much further down the line (British citizenship for example).