Can I get divorced in the UK as an expat?

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. 

Expats will often have various jurisdictions where they can choose to file divorce proceedings in. Choosing the right jurisdiction for your divorce to proceed in as an international couple is a major decision, as the outcome of your financial settlement will vary significantly depending on where you divorce.

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Can I divorce in England and Wales as an expat?

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. 

Effect of Brexit 

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  

Is England and Wales my best option for divorce – what are the potential considerations?  

Choosing a jurisdiction to apply for a divorce has long term ramifications on your post-divorce financial future. In England and Wales, marriages are seen as equal partnerships, with no distinction made between the contributions of a breadwinner or homemaker. As such, the court’s starting point is to divide assets accumulated over the course of the marriage 50/50. In contrast, some jurisdictions remain largely weighted towards the recognition of parties’ financial contribution only, therefore favouring breadwinners.

As such, and given the transboundary nature of an expat’s life, you may be wondering if there are multiple jurisdictions where you could obtain a divorce in and, if so, which one would work most in your favour. 

Making this decision is more complex if you are an expat in a country like the US, where each state has different matrimonial laws that you would have to obtain legal advice for. Another, even more complex, consideration is if either you or your spouse were born in an Islamic country, such as the UAE, 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.