With the increasing mobility afforded by technology and flexible working, more and more people are making the move towards living and working abroad as an expat. Where a couple with international ties decides to separate, this can raise various issues relating to the divorce process and where it can take place.
It is possible to get divorced in the UK so long one of the following apply:
Both parties are habitually resident in England and Wales
Both parties were habitually resident in England and Wales and one of them continues to reside there
The respondent is habitually resident in England and Wales
The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made
Either or both of parties are domiciled in England and Wales
It is important to understand the concept of domicile. Everyone acquires the domicile of their father at birth (or your mother’s if your parents were not together) and you can only have one domicile in one country at any given point of time. It is indeed possible to be domiciled in a new country after the age of 16, for example, by permanently relocating elsewhere with no intention of returning to your home country.
If either you or your spouse was born in England or Wales, and are now a British expat abroad, you can principally obtain a divorce in an English court. This is because an individual under these circumstances is usually considered legally domiciled in England and Wales - in other words, that they were born in England and Wales and intend to return (so this is regarded as your permanent home).
However, the above only forms a general starting point. This is because your application to divorce in England and Wales is not approved outright without the court’s prior consideration of factors to evidence your connection to the jurisdiction.
As such, so long as you retain your domicile in England and Wales, meaning you do not harbour the intention to permanently remain in the country you are an expat within, then you are generally able to obtain a divorce here.
Before Brexit, parties were prevented from starting proceedings in an EU country, including England and Wales, where divorce proceedings had already been started in another EU country. This is the “first time rule” and means other countries have to halt their proceedings if they were not the first. Divorce proceedings were mutually recognised across EU states without any further actions.
Since Brexit, the rule of forum conveniens now applies in relation to England and Wales and the courts here do not automatically have to stay proceedings because a divorce has been commenced in an EU country. Instead the courts will look at other factors to determine whether England and Wales is the most appropriate forum:
The nationality of both parties
Where they are habitually resident and domiciled
Where the family life is based- for example, the location of the family home, where the Children attend school, where the parties work
Where any assets are held
The language and cultural background of both parties
Which other jurisdictions are being considered for the divorce proceedings
Choosing a jurisdiction to apply for a divorce has long term ramifications during and after the divorce. For example, the jurisdiction of England and Wales recognises the starting point of any financial settlement to be that of an equal division between spouses, with no distinctions to be made between the breadwinner and homemaker. On the other hand, certain other jurisdictions remain largely weighted towards the recognition of financial contribution only. As such, and given the transboundary nature of a British expat’s life, you may be wondering if there are more than one jurisdiction(s) you could obtain a divorce in and, if so, which one would work most in your favour.
Such a consideration is made more complex if you are an expat in a country like the US, where each state may have a range of devolved matrimonial laws that you would have to obtain legal advice for, depending on where you live and where you own a business or property. Another, even more complex, consideration is if either you or your spouse were born in an Islamic country, where Islamic laws on divorce may apply.
In addition, there might exist issues surrounding the recognition of pre-nuptial agreements. Pre-nuptial agreements are, indeed, recognised in England and Wales following the case of Radmacher, though this may not necessarily be the case in other jurisdictions.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.