Is A Conjugal Relationship Visa The Right Way For Us?

[raas___]

First I just wanted to say thank you to anyone who can give us advice as our case is very complicated and any suggestions are so appreciated!

I am a Canadian citizen (by birth) and my partner is an Indian citizen (by birth). We have been together since September of 2009, with most of that time in long distance. Our first time meeting I travelled to India August 2013 and we spent 2 1/2 months together and during that time we became pregnant with our now 7 month old son. I went back to Canada to give birth and spent 10 months there, returning to India September 9th of this year (2014). We are currently living together and our son and I's visitor visas will be expiring at the beginning of February. We will be travelling to Nepal and reapplying for fresh visas to be able to spend more time together while we figure out our immigration processes.

Now for the stressful, long confusing part!

During our relationship together, my partners extended family arranged a marriage for him as they were not happy with his choice to marry a foreigner. Despite continuous meetings and protests with his family and the girls family, they would not stop and threatened for legal action if my partner tried to stop it. To make short of a lengthy description, when the marriage was done and the girl went back to her family they immediately started filing complaints in various police stations claiming fraud, dowry, domestic violence all of which are completely false! After 1 year was complete my partner filed for divorce and the harrassment continued, with no chance for a settlement. They have now and recently filed and registered a case against my partner and his family for the same above complaints. It seems they don't want anything but to make hassle and stress, having to run to different cities/states and are not willing to give up and accept any kind of end to all of this.

We have been stuck with no "legal" way to be together as we cannot get married and our only way is by living relation which we have been doing since last year. As it is very clear without a legal marriage certificate we cannot apply for a Spousal Visa so we are without options or help as to what to do. We were suggested by several lawyers to apply for a visitor visa for my partner and then get married in Canada but we have researced a lot and as we have heard they don't get easily approved and with our situation and the fact that we plan to reside in Canada it most likely would be a basis for refusal.

We have ALL the proofs required (our son being the biggest and most genuine haha ) from years of phone records, skype logs, viber calls and messages, tons of pictures and bank statements with money transfers from both him and I. We have recently come across information for a Conjugal Relationship visa and it seems extremely fitting for us, although we have yet to discuss this option with a lawyer. They have yet to suggest it to us so i am wondering if it is a visa category that doesn't get approved a lot or takes a lot of processing time?

Not sure about which direction to go but all help and suggestions are much appreciated!!

We just want to be together as a family and that's it!

 

[tink23]

If you have lived together continuously for at least 12 months then you can apply as Common Law, which is a legal status. You don't have to be married to apply for spousal visa if you are common law.

 

[Rob_TO]

You would probably not be found eligible for conjugal, since there is no legal reason you can't live together to establish common-law. Also as your partner has filed for divorce, once that is settled then you could get married so again there is no barrier that would justify a conjugal app.

You should live together for 12 consecutive months, then apply as common-law. Even if your partner is still legally married to the other person, you can still qualify for common-law status.

If you started this current stretch of living together Sept 9, 2014... you would become common-law and be able to apply for PR after Sept 9, 2015. Just make sure there are no breaks of your cohabitation during this time. Or of course if the divorce gets finalized then just get married asap and then apply. You could get married in any country you want.

 

[raas___]

If you have lived together continuously for at least 12 months then you can apply as Common Law, which is a legal status. You don't have to be married to apply for spousal visa if you are common law.

Thanks for your reply. As India only issues 6 month visitor visas, we will be going to Nepal in a few weeks but even still that is cutting it really short until the next visas are expired. We are discussing about going AGAIN after our next visas are finished although there's no guarantees the fresh visa will be issued. If it does work though that seems like the most successful way to go..

 

[raas___]

You would probably not be found eligible for conjugal, since there is no legal reason you can't live together to establish common-law. Also as your partner has filed for divorce, once that is settled then you could get married so again there is no barrier that would justify a conjugal app.

You should live together for 12 consecutive months, then apply as common-law. Even if your partner is still legally married to the other person, you can still qualify for common-law status.

If you started this current stretch of living together Sept 9, 2014... you would become common-law and be able to apply for PR after Sept 9, 2015. Just make sure there are no breaks of your cohabitation during this time. Or of course if the divorce gets finalized then just get married asap and then apply. You could get married in any country you want.

Unfortunately it doesn't look as though a divorce is in the near future. It can take years and years in court until the girls side gives up. Oh and the marriage wasn't legalized at all (in western terms) but in India religion is above law so it cancels it all out haha!

So are you saying that even if the divorce is still pending, we can apply for a common law section of the spousal PR?? Canada has no objections to that?

We are going to Nepal in a few weeks as I had written in the OP, and it wil take us to the end of September until the next visas are going to expire. It will be tight for time but if we make our application package ready it might be possible..

 

[Kayaker]

Yes, you (your husband) can still be married (or "married") to someone else and still qualify as common law. To be common law you need to live together for 12 consecutive months. Once you have lived together for 12 consecutive months, you can sponsor him for PR even if the divorce is still pending.

Conjugal applications take a very long time, and the criteria for it is extremely strict (as others have pointed out, you probably don't qualify) so overall it will save you time to apply for him as common law after September 2015. Good luck!

 

[raas___]

Yes, you (your husband) can still be married (or "married") to someone else and still qualify as common law. To be common law you need to live together for 12 consecutive months. Once you have lived together for 12 consecutive months, you can sponsor him for PR even if the divorce is still pending.

Conjugal applications take a very long time, and the criteria for it is extremely strict (as others have pointed out, you probably don't qualify) so overall it will save you time to apply for him as common law after September 2015. Good luck!

That's great to know thanks so much!

 

[Rob_TO]

Oh and the marriage wasn't legalized at all (in western terms) but in India religion is above law so it cancels it all out haha!

What do you mean it wasn't legalized? Does that mean only some religious ceremony was done, but no government/legal marriage paperwork was ever filed?
I don't know about how marriages work in India, but perhaps this means you are not legally married to Canadian government?


Read here for more info on becoming common-law while married: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
5.38. What happens if the common-law partner (principal applicant) is married to another person?
Persons who are married to third parties may be considered common-law partners provided their marriage has broken down and they have lived separate and apart from the spouse for long enough to establish a common-law relationship – at least one year.

 

[truesmile]

The word that jumped into my mind when i read it was "consummated".

 

[raas___]

What do you mean it wasn't legalized? Does that mean only some religious ceremony was done, but no government/legal marriage paperwork was ever filed?
I don't know about how marriages work in India, but perhaps this means you are not legally married to Canadian government?

Yes that's totally right! Just a religious ceremony but no paperwork. Here as I said religion is above the law so you can get divorced, file cases in court etc etc and it's totally legal. Even up until August 2013 it was "illegal" to have a relationship outside of the "marriage", regardless of how long the couple were together or even if the marriage wasn't consumated. Thank god the laws have changed in that regard for our situation!

Thank you so much for the link, will read up on it!..

 

[raas___]

The word that jumped into my mind when i read it was "consummated".

Sorry, can you explain further what you meant??

 

[Rob_TO]

Yes that's totally right! Just a religious ceremony but no paperwork. Here as I said religion is above the law so you can get divorced, file cases in court etc etc and it's totally legal. Even up until August 2013 it was "illegal" to have a relationship outside of the "marriage", regardless of how long the couple were together or even if the marriage wasn't consumated. Thank god the laws have changed in that regard for our situation!

Thank you so much for the link, will read up on it!..

If you just did a religious ceremony but didn't file any paperwork with the government or anything like that (so you don't have a marriage certificate), then I'm not sure if you are even legally married. If that is true, then you could simply get married with your current partner immediately, if not in India then in some other country.

But again I'm not certain on what constitutes a legal marriage in India, that Canada would also see as a legal marriage vs just having a had a non-legally binding religious ceremony.