Marriage of convenience / fraud

[nole73]

This topic has been probably discussed on here million times, but here's my story... note that I'm a Canadian citizen who sponsored his wife. I was on this board back in the day... and here's my story

Met a girl in Serbia in November of 2011. Got married in Serbia in April of 2012 (and she quit her job at that very same time). She got her PR in December of 2012. In October of 2013, we had a daughter. At this point (April 2014) we are divorcing and she is going back to Serbia as she is completely different person (no need to blame it on her raging hormones, she made 180 compared to what she was when we met). The divorce will also take place in Serbia and she will have the full custody of our daughter (as per our divorce agreement)... there is a big chance that she might make a claim towards the matrimonial home (that I solely paid off) once the divorce is finalized. Even though she might not come back to Canada, can I report her to the authorities and somehow prevent her from going after matrimonial home? What are my rights? Also, if she has the full custody of the child in Serbia, can I eventually request for a child to be brought back to Canada as the child has Canadian citizenship?

This is a textbook of a marriage of convenience - way too many red flags.

Thanks in advance...

 

[canuck_in_uk]

Even though she might not come back to Canada, can I report her to the authorities and somehow prevent her from going after matrimonial home? What are my rights? Also, if she has the full custody of the child in Serbia, can I eventually request for a child to be brought back to Canada as the child has Canadian citizenship?

This is a textbook of a marriage of convenience - way too many red flags.

I'm not totally familiar with the rules but generally, if the house was yours before you were married, it remains yours after the divorce. If it was purchased after you married, then it's common property and she has a legal claim to half the value, regardless of who actually paid for it. What "authorities" are you referring to? If you mean immigration, then there is absolutely nothing they can do about the division of assets in your divorce.

If you give the mother full custody, then it will be entirely her decision as to whether the child comes to Canada or not. It doesn't matter that the child is Canadian. If the mother refuses, you would have sue for custody through the Serbian courts. At that point, assuming that the child would have been living with the mother in Serbia for many years, it is extremely doubtful that a Serbian court would grant custody to a foreign father who lives in Canada.

Normally, when a person goes to all the trouble of marrying someone (and in your case, even having a child with them) just to get into Canada, they actually stay in Canada. They don't return to the country they were trying so hard to escape, even after they leave their sponsor. There are some red flags but her willingness to return to Serbia, especially with her daughter, suggests that it was not an MOC.

 

[zardoz]

A lot will depend on the jurisdiction of the divorce court. For example, in the UK, prenuptial contracts are not binding, unlike the US.
It is entirely possible that the court in Serbia could award a full 50/50 split of ALL assets, and then award child support on top. This is completely unrelated to the Immigration status of the wife, as this comes under Family law. Time to be seeking a very good lawyer, or you could be taken to the cleaners....

 

[scylla]

Normally, when a person goes to all the trouble of marrying someone (and in your case, even having a child with them) just to get into Canada, they actually stay in Canada. They don't return to the country they were trying so hard to escape, even after they leave their sponsor. There are some red flags but her willingness to return to Serbia, especially with her daughter, suggests that it was not an MOC.

I agree with the above. Her behaviour isn't textbook MOC at all. Textbook MOC would have been leaving you as soon as she arrived in Canada and became a PR (i.e. within weeks) and then doing whatever it takes to stay in Canada - also potentially going on welfare immediately. I hate to say this, but I think there's a very high chance CIC will just classify this as a relationship gone wrong.

Rather than spending time and/or money trying to prove MOC to CIC - I think it would be wiser to to focus your efforts on working with a good divorce lawyer on the subject of your matrimonial home and the custody of your child. Good luck.

 

[nole73]

I'm not totally familiar with the rules but generally, if the house was yours before you were married, it remains yours after the divorce. If it was purchased after you married, then it's common property and she has a legal claim to half the value, regardless of who actually paid for it. What "authorities" are you referring to? If you mean immigration, then there is absolutely nothing they can do about the division of assets in your divorce.

Matrimonial home is completely different asset. It is separate from other common assets that we earned within our marriage. I already talked to a lawyer and was told that she can get roughly 40% of her share (split is 50/50) since we've been married for 2 years; if were were married for 5 years, she could have claimed 100%.Example: house is worth 500K, 50% is 250K, 40% of her share is around 100K.

If you give the mother full custody, then it will be entirely her decision as to whether the child comes to Canada or not. It doesn't matter that the child is Canadian. If the mother refuses, you would have sue for custody through the Serbian courts. At that point, assuming that the child would have been living with the mother in Serbia for many years, it is extremely doubtful that a Serbian court would grant custody to a foreign father who lives in Canada.

Makes sense.

Normally, when a person goes to all the trouble of marrying someone (and in your case, even having a child with them) just to get into Canada, they actually stay in Canada. They don't return to the country they were trying so hard to escape, even after they leave their sponsor. There are some red flags but her willingness to return to Serbia, especially with her daughter, suggests that it was not an MOC.

Well, she never liked Canada and she can do plenty with her share of matrimonial home in Serbia. Her share of it in Serbia is worth way way more than it's worth in Canada.

Thanks for your replies guys. Much appreciated.

 

[Regina]

It is separate from other common assets that we earned within our marriage. I already talked to a lawyer and was told that she can get roughly 40% of her share (split is 50/50)

You did not answer the question whether the house was bought before marriage (by you)(1) or after you got married (2). It looks like after marriage (2) then why she could get only 40% and not 50%, and in case (1) - she still could get 40%?

The only thing is that it will be quite difficult for her to sue you from Serbia.Besides why could not you make an agreement on house?

 

[zardoz]

As I said in my previous post, it doesn't matter what OUR opinions are. It will depend on what the divorce court orders, and it's quite possible that a Serbian court will award assets very differently from a Canadian court, especially to a Serbian national, with a Serbian child.. The only way for the OP to have any guarantee of fairness based on Canadian Law, is to divorce in Canada.

 

[Leon]

If you were married for 2 years and have a child, I don't think you have a chance reporting this as a MOC. Besides, this would accomplish what? At best, revoking her PR and that would mean that even if she wants to return to Canada with your daughter, she can't.

If you want to keep your daughter in Canada, the time to arrange that is now before she leaves. Talk to a lawyer now. If you get joint custody, they can stop her from leaving the country. However, divorcing in Canada means following Canadian law and that could possibly mean having to pay her alimony and having to give her half your assets and possibly letting her live in the matrimonial home with your daughter until she is grown.

If you let her go to Serbia and divorce you there, you are giving yourself up to the Serbian courts and whatever they decide. I have no idea about divorce law in Serbia. I suggest you contact a lawyer in Serbia as well to ask about it. If she gets full custody of your child, you will have to go to Serbia if you want to visit her. The courts in Serbia may not obligate your wife to let your daughter visit you in Canada. They may rule that you should split your assets with your wife but I have no idea if such a court order can be enforced if you fight it. You need to ask a lawyer in Canada about that.

 

[nole73]

You did not answer the question whether the house was bought before marriage (by you)(1) or after you got married (2). It looks like after marriage (2) then why she could get only 40% and not 50%, and in case (1) - she still could get 40%?

This house was bought by myself and paid off by myself before we even got married. The house was always (and still is) under my name.

The only thing is that it will be quite difficult for her to sue you from Serbia.Besides why could not you make an agreement on house?

She can always contact a lawyer / legal aid as she has PR status in Canada.

 

[nole73]

As I said in my previous post, it doesn't matter what OUR opinions are. It will depend on what the divorce court orders, and it's quite possible that a Serbian court will award assets very differently from a Canadian court, especially to a Serbian national, with a Serbian child.. The only way for the OP to have any guarantee of fairness based on Canadian Law, is to divorce in Canada.

Serbian courts do have their own way of dealing with the divorce process - whatever you brought to marriage, it's yours to keep, including matrimonial home. Very simple. Common assets (things that you earned together while being married) are divided 50/50.

Child has Canadian citizenship, as it was born in Canada. I have dual citizenship (Canadian/Serbian), wife has Serbian citizenship and is Canadian PR.

 

[nole73]

If you were married for 2 years and have a child, I don't think you have a chance reporting this as a MOC. Besides, this would accomplish what? At best, revoking her PR and that would mean that even if she wants to return to Canada with your daughter, she can't.

As I said, if she doesn't want to come back to Canada and tries to claim her share of the Canadian matrimonial home once we are divorced, it is pretty obvious what was her intention to begin with. She can stretch her share of money much further in Serbia than in Canada (as the living standard in Serbia is lower). And did I mention that she despises Canada and everything that's non-Serbian?

If you want to keep your daughter in Canada, the time to arrange that is now before she leaves. Talk to a lawyer now. If you get joint custody, they can stop her from leaving the country. However, divorcing in Canada means following Canadian law and that could possibly mean having to pay her alimony and having to give her half your assets and possibly letting her live in the matrimonial home with your daughter until she is grown.

I understand that. But my wife (soon to be ex) won't stay in Canada, that is a long shot. She is not able to handle life on her own, especially when there are responsibilities around her that she is not ready for. I won't get into details, but I know what I'm talking about.

If you let her go to Serbia and divorce you there, you are giving yourself up to the Serbian courts and whatever they decide. I have no idea about divorce law in Serbia. I suggest you contact a lawyer in Serbia as well to ask about it. If she gets full custody of your child, you will have to go to Serbia if you want to visit her. The courts in Serbia may not obligate your wife to let your daughter visit you in Canada. They may rule that you should split your assets with your wife but I have no idea if such a court order can be enforced if you fight it. You need to ask a lawyer in Canada about that.

I already hired a lawyer in Serbia, and my wife already signed the divorce agreement that will be presented to court in Serbia (as we got married in Serbia). The lawyer said that once the divorce is granted in Serbia, it is valid in Canada as well. Within this agreement, I will have visitation rights (few times a year due to distance) and will be able to keep in touch with our child (phone/skype), and will pay child support. It should be noted that there are no common assets and that is explicitly mentioned within the agreement. Also, once the divorce is granted in Serbia - that's it. No one can ask for anything else in terms of assets, matrimonial home, properties, etc. Therefore, when we get divorced she will get what she brought into the marriage, and so will I (by default). The appeal can be only made in Serbia, but not in Canada as the divorce was granted in Serbia. Chances of winning this appeal in Serbia are slim to none.

Canadian divorce law has a serious flaw - matrimonial home topic is a joke. Is it fair for someone to get 50% of someone's money if you spend few years being married to them? I know that life is not fair, but this is little extreme.

 

[Leon]

Canadian divorce law has a serious flaw - matrimonial home topic is a joke. Is it fair for someone to get 50% of someone's money if you spend few years being married to them? I know that life is not fair, but this is little extreme.

Each country has it's own laws. If you get married in Canada, you can always make a prenuptial agreement in order to clarify who brought what into the marriage and how the assets should be split in case of divorce.

Actually, it would not have been a bad idea to make such an agreement even if you get married in Serbia or other countries that have the same law because if your wife would have chosen to divorce you in Canada which would have been her right, she would have gained half your assets because of Canadian law.

 

[Regina]

Serbian law does not work in Canada.
Your wife can use a lawyer in Canada being outside of Canada if she has money for that. To get a Legal aid IN CANADA she has to LIVE IN CANADA and not in Serbia. And if she lives in Canada the issue with your house is Canadian and as your lawyer said it could cost you 40% of it. A law is a law. And also a good lawyer.

 

[nole73]

Thanks for your input guys. At least I won't be taken to the cleaners. I will survive I had worse moments in my life. Money is not everything.

 

[nole73]

Serbian law does not work in Canada.

So if we divorce in Serbia, the divorce is not valid in Canada. That does not make sense. How's the marriage from Serbia recognized in Canada?