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Old 02.08.2021, 10:18
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Planned marriage (but not yet divorced) / Visa D / tourist visa

On another thread, I wrote about Sandra.
She is Swiss, has been living abroad, and is returning to live in Switzerland.
https://www.englishforum.ch/employme...-register.html

Some years ago, in the non-EU country in which she has been living for some years, Sandra got married. After a while together, she and that man realised that the relationship was not going to work, and they split up. They have not seen each other for several years, and have each moved on with their own lives. Sandra's new partner is also from that same non-EU country.

Now that Sandra is returning to Switzerland, she will apply for family reunification, so that her new partner can join her, to get married and live together in Switzerland. As a Swiss citizen, obtaining this permission would ordinarily not be a problem for her. Accommodation is a given, as she has family here with plenty of room, and the new couple will be staying with them. She will continue to be employed by her non-EU employer (see other thread), and already has the possibility of more work in Switzerland.

The following factors make this situation complex.
  • Sandra is not yet divorced from her first husband. In that non-EU country, the procedures to get divorced are being followed, but they are time-consuming and tedious.
  • Sandra is pregnant by her new partner. There are several definite reasons why she will give birth in Switzerland, not in the non-EU country.

Given the pregnancy, Sandra is now under some time pressure as, naturally, she and her husband-to-be hope that he will be able to join her in Switzerland before the baby is due, to be with her and support her then, and to welcome Baby into the world. The tricky part, now, is to get everything in a row, legally (they are very certain that they want to do everything the correct way), while taking account of their needs as a new family.
  1. As far we can understand, her new partner needs a D-visa to enter Switzerland for the purposes of marrying her. However, it seems unlikely that this would be granted, directly, given that she is not yet divorced. Does anyone know whether this is accurate, or can anyone point to any rule, perhaps on compassionate grounds, for this unusual situation?

  2. Might it make more sense for him to apply for a tourist visa, so that he can at least be in Switzerland during the time of the birth and soon thereafter, even if he is required to leave Switzerland again afterwards, and only later return to Switzerland (then on a D-visa), after her divorce is granted?

  3. I think that tourists cannot get married in Switzerland. If he were once here, on a tourist visa, and during that time her divorce is granted, could his tourist visa be converted to a D-visa, so that they could get married?

  4. If her divorce does not come through while he is here as a tourist, does anyone know of any way to argue for, perhaps, a compassionate extension of his tourist visa, on the basis of his/her need for him to be here for her and Baby?
I'd be most grateful for any advice on this situation. Thank you.

Last edited by doropfiz; 02.08.2021 at 10:51.
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Old 02.08.2021, 10:30
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

For point 1, I'm pretty sure you need to show proof that you are not married before entering a marriage. Generally this is by showing documents from your home country. So for Sandra it would be Switzerland.

If she was married here, or if she had a foreign marriage registered here, then there'll be issues, otherwise I think she would still be entering the marriage under false pretenses if she were to not declare her existing marriage. I've not heard of many exceptions for Polygamy, and never heard of any for Polyandry.
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Old 02.08.2021, 10:34
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

No, no, she is not planning to try to do anything illegal, not at all! Yes, both she and he fully understand that she first will have to show that she is legally divorced, (in the non-EU country) before she can enter a new marriage (in Switzerland.

My questions were about the visas, though, and the right way to go about this, to try to find a way for him to be with her, here in Switzerland, around the time of the birth, at least, while the divorce is being processed.
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Old 02.08.2021, 10:38
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

My apologies, I missed the point. Best of luck to your friends.
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Old 02.08.2021, 10:51
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

Thanks. I went back to my post, and highlighted that part... just in case anyone else sees this, and can perhaps offer advice.
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Old 02.08.2021, 11:05
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

This all sounds like a exam question.

<<perhaps on compassionate grounds, for this unusual situation?>>
Seriously? Compassionate grounds - if ever applied in law - are about life and death. Plus her situation is not unusual at all.

Sorry to sound harsh but does anybody know/care what some people out there have to go through?! A little common sense perspective might help.

In the other thread you linked you said, her employer wants to keep her on and Sandra wants to make use of that yet go back to Switzerland at the same time and in this problem as well wants a lot of extras to do so.
She could simply stay in the EU country until the divorce is over, have her child there, get married there, come back together. It will not make any difference to the child what so ever. And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.

Anybody who thinks the term "Härtefall" (hardship case) will apply here would fail the above mentioned exam.

However, all the best for Sandra.
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Old 02.08.2021, 11:21
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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She could simply stay in the EU country until the divorce is over, have her child there, get married there, come back together. It will not make any difference to the child what so ever. And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
Sandra is not in an EU country, but in a non-EU country.

In that non-EU country, there is no provision for her to have adequate medical insurance to cover her or the baby before, during and after birth. Having returned to Switzerland, she will have all of those.

These questions of medical insurance for herself and the baby, (plus some personal reasons I an not at libery to share, here) mean that she would be very ill-advised to stay in that non-EU country for the birth, and will return to Switzerland to give birth, here.
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Old 02.08.2021, 11:27
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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This all sounds like a exam question.

<<perhaps on compassionate grounds, for this unusual situation?>>
Seriously? Compassionate grounds - if ever applied in law - are about life and death. Plus her situation is not unusual at all.

....
Anybody who thinks the term "Härtefall" (hardship case) will apply here would fail the above mentioned exam.
Sadly, no, it is not merely an exam question, but a real life case.
And it is precisely because we don't know much about these matters, that I'm asking the questions for Sandra.

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Sorry to sound harsh but does anybody know/care what some people out there have to go through?!
Yes, definitely. Hence this thread, out of a part of that care.

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A little common sense perspective might help.
Yes, that's what we're trying to gain.

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In the other thread you linked you said, her employer wants to keep her on and Sandra wants to make use of that yet go back to Switzerland at the same time and in this problem as well wants a lot of extras to do so.
Yes, she will continue to work for her non-EU employer, once she returns to Switzerland. That part is all arranged with the AHV-Zweigstelle, and it turns out that it is remarkably easy, and doesn't need any special measures, other than just registering.

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However, all the best for Sandra.
Thank you.
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Old 02.08.2021, 11:55
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
This.

Tom
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Old 02.08.2021, 13:11
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

The only option I can see is if her canton offers a concubine permit?
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Old 02.08.2021, 13:19
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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They have not seen each other for several years, and have each moved on with their own lives.

Well, that is not called moving on if they never got divorced


Has she contacted the "real/legal" husband and is he going to fully cooperate with the divorce proceedings?
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Old 02.08.2021, 13:25
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

As she is Swiss, she should contact the authorities in Switzerland and ask. Maybe if she can show paperwork that her divorce is underway that would help?
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Old 02.08.2021, 15:03
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
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As she is Swiss, she should contact the authorities in Switzerland and ask. Maybe if she can show paperwork that her divorce is underway that would help?
The local Swiss consulate/embassy should be able to advise Sandra. If halfway competent, they might even be capable of taking local procedure/timeframe re divorce into consideration. I’d suggest that a tourist visa might allow the father to be around when the baby is born. All the other formalities will depend upon finalisation of divorce, i.e. hubby-to-be has to leave and come back at least once probably.
AFAIK the current husband is indeed considered the legal father. Sandra should ensure that the biological father is registered/accepted on birth of the baby to avoid future complications. Here again, the Swiss consulate/embassy should outline what path/documentation the biological father has to follow.
No intention to add drama but wouldn’t be surprised if the KESB reared its head too regarding child welfare given the not quite usual circumstances.
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Old 02.08.2021, 15:33
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
Wow Switzerland never fails to amaze me!
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Old 02.08.2021, 15:37
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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Wow Switzerland never fails to amaze me!
That is not Swiss specific.
AfaIk it's even so for a certain period of time after a divorce (let me guess, 10 months? )
It can be sorted. But it must be sorted. (Btw. it's not comfi for the non-father who is being held responsible until it is sorted).
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Old 02.08.2021, 15:46
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
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Wow Switzerland never fails to amaze me!
Didn't notice Karley's blanket coverage of this aspect. AFAIK this applies to children born to parents still legally married. I.e. immaterial once divorced/remarried...but the ~10 months thingie might make sense too
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Old 02.08.2021, 17:01
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

10 months to remarry or a medical certificate proving non-pregnancy.

Definitely not an easy situation for Sandra.
Best of luck to her.
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Old 02.08.2021, 17:03
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

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And btw. the child will be considered the now-husband's one even if she is divorced and/or remarried by the time of birth, so more legal procedures are awaiting her.
Further, only the (soon ex-)husband can challenge fatherhood, the mother has no say.

Btw, who says Swiss law applies?
The couple married and lived abroad, she kept on living there until recently. It's also where she met her new (probably temporary) lover and where the child was fathered (do note the verb). If the soon-ex raises a lawsuit, he'll probably have to do so in that mysterious must-not-be-named non-EU country, where Swiss law is utterly irrelevant. Is it even a signatory of the Hague Child Protection Convention?

Doropfiz, please remind her to use her brains every one in a while, that's what it is for.
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Old 02.08.2021, 17:07
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

Come on UM it’s already a very difficult situation for this lady.
Lets be kind and helpful.
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Old 02.08.2021, 17:30
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Re: Planned marriage (but not yet divorced) / Visa D / tourist visa

The fact that it's difficult is exactly the reason for my reproach.

With a reasonable amount of responsibility she would have acted in time, by which it would have been far easier to solve. There's a fair chance the problem wouldn't even exist at all, they may have been separated for years.
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