• Li Li (Lily) Chong

    posted by  in Belgium forum 

    Dear Netra,

    Firstly, you are residing now in Belgium by way of being an F-carte holder, which is derived out of being married to an European Union (EU) citizen. The term 'spouse' maybe accepted differently in different Member States- usually, they recognise marital relationship, but it is also acceptable to be in registered partnership-provided the host country recognises it as equivalent to marriage.

    At the moment, we, third country nationals enjoy this 'Right of Residence' by virtue of being 'members of the family' of an EU citizen. This right is guaranteed by way of EU directive 2004/38. As you mentioned you are here on a 5 year-residence, this falls under the category of a medium term 'right of residence' - which allows you, among others, to be able to work in Belgium, without having to go through the challenges of obtaining a work permit in order to be employed here.

    In case of divorce, normally, the 'right of residence' also expires along with the end of the relationship, unless certain conditions are fulfilled and have been married for 3 years (for which at least, you must have resided in Belgium for a year), or if you are a parent, who has custody of children here. These conditions are for instance, if you have worked continuously, permanently with a company for at least 2 years (proof of permanent contract of employment, OR if you are a self-employed worker) -this is the 'economic link' that a Third Country national has to prove in order to live in Belgium derived through an EU citizen, just so as to prove that we will not be a burden on the social system here i.e. if one is unemployed and is not economically active.

    However, if you have resided in Belgium continuously for 5 years, you have a right to apply for permanent residence, which means that you will then be able to live in Belgium independently rather than having to derive and enjoy the 'right of residence' by virtue of being married to a Belgian.

    My short answer to the above (not taking into account the full facts of your situation, as only the above details are provided), you should think twice about getting a divorce, if you wish to continue enjoying your 'rights to reside' in Belgium. If it ends prior to you obtaining a permanent residence, you will lose the right to continue residing here and freely move in the EU. Should you then wish to continue staying in Belgium, either that you fulfil the conditions (that you are contributing to the economy of the country through taxation, stable employment), OR you re-apply to live in Belgium, but via Belgian migration laws that is normally applicable for third country nationals. (which you can find for more info in EU Directive 2009/20) If I am not wrong, it is also possible to obtain a right to be in an EU country via Research and Students Directive- if you're a PhD student/researcher.

    I hope the above helps, but the usual legal disclaimer applies, as I am not your lawyer. For better certainty on your future possible actions, it is advisable that you consult a lawyer or legal aid/probono service in your local area. The above only constitute an informal view (not legally-binding in anyway) based on the little that I learnt before.

    Best regards, good luck and the best advise is- Maybe give your marriage another shot? Remember the good times and why you got married in the first place, and try to reconcile your differences, :)

    I hope it works out between both of you. Being married to someone from a different culture and background is not easy, what more having to adapt to the different lifestyle in Belgium- I can empathise with that. Try your best to integrate as much as you can in the society to be less too dependent on your Belgian spouse, perhaps? I don't want to sound imposing or intrusive, hence, I will stop here, despite that my intentions are genuine.

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