Many marriages have an increasingly international element with couples of different nationalities often marrying in different countries and then possibly residing, working and holding assets in other countries. If a couple decides to divorce, there may be a choice of country where the divorce can take place and this can have significant and far-reaching consequences for both the divorce, the financial arrangements and the decisions relating to the children. Where British expats are getting divorced it is very important to ensure you understand the implications of where you choose to get divorced.
Under the current law, if a couple wishes to divorce then they have to prove that their relationship has irretrievably broken down. In order to do this, the couple must have been married for a year and need to rely on one of the following five “facts”:
Divorce proceedings are started by the applicant who will serve the papers on the other party (the respondent). The respondent must reply to acknowledge receipt and state whether or not they wish to defend the divorce. If the court agrees that the divorce can proceed, then it will issue the decree nisi and then once the financial and childcare arrangements are dealt with the court will finalise the divorce with the decree absolute.
Where a person’s visa or entitlement to remain in the UK is dependent on them being married to their spouse, there are added complications and it is important to get advice on the options available if you wish to remain in the UK.
Whether or not a person can get divorced in England and Wales will be based on the where the parties are habitually resident and where they are domiciled.
Domicile is the main permanent home of a person. It is determined by where you live or where you intend to return. Your domicile is initially determined at birth by the domicile of your parents but it can be changed to another country (domicile of choice) if you move and make that your permanent home. This means you can remain domiciled in the UK even if you live abroad if your intention is to return to this country.
Habitual residence is the place that a person is settled and where their life is mainly based. There must be an intention to remain settled there. Again you can only be habitually resident in one country.
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:
Another major impact of Brexit is that some same sex marriages and divorces may not be protected or afforded the same rights since not all Eastern European states recognise them. Civil partnerships are also not recognised universally under EU laws. Prenuptial agreements concluded after the end of the transition period (31 December 2020) will not be able to rely on any “choice of court” clause that favours either England and Wales or an EU country.
Recognition of divorces in other countries will depend on whether:
The countries are members of The Hague Convention
Otherwise, whether the law of that country recognises divorces in England and Wales
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 should be noted that even where the divorce process occurs in the UK it may be the case that the legal systems in other countries are involved in relation to assets that are located abroad and for arrangements relating to children.
The first issue is to make sure that a divorce in one country will be recognised elsewhere. So long as this is the case then the actual divorce process is not the main issue in choosing the right jurisdiction. However, it is important to understand the circumstances in which a divorce is and is not allowed in that particular country and whether there is any limitations or time restrictions that are relevant to the facts of the case
What is more likely to make a difference is the fact that different countries will approach the financial division of assets and the arrangements relating to children and this is where the choice of country for divorce can be very important. For example, it is not necessarily the case that a UK court order in relation to assets located abroad will be enforceable in that country.
Depending on where a divorce proceeds can greatly affect the outcome:
It should be noted that courts in England and Wales are able to deal with financial orders even where a divorce has occurred overseas under Part III of the Matrimonial and Family Proceedings Act 1984. This allows the English Courts to correct a situation where inadequate financial provisions are made during a foreign divorce. The UK has signed up to The Hague Convention on the Recognition of Divorces and Legal Separations 1970, which means it will recognise divorces or separations that are conducted in other contracting states. England and Wales are generally recognised as being one of the jurisdictions that is more generous to the financially weaker spouse than some other countries are.
Where divorce proceedings are started in multiple countries, the UK can halt proceedings if it decides that on the balance of fairness and convenience it would be more appropriate for another country to deal with the divorce. This now includes EU states following Brexit. The courts will consider all relevant factors including:
The law surrounding divorce in the UK is about to undergo a radical change with the introduction of no fault divorce on 6th April 2022. This will remove the need to blame one of the parties for divorce and will also allow the parties the option of a joint application. The right to contest a divorce is also going to be removed by this new law.
Expats will often favour using the English courts due to the familiarity with the system and language and the fact that, on the whole, it is generally an efficient process that can be quicker than in other countries. The UK divorce process is based on the principle of fairness and this is not necessarily the case in all jurisdictions.
The law in relation to the arrangements for children following divorce depends on where the children are living and possible where the divorce was filed. Issues relating to relocating children following divorce or preventing the abduction of your child by your ex-spouse are particularly challenging and can be greatly affected by the law of the countries involved in the particular case.
Most of the measures in relation to child abduction are replicated in The Hague Convention 1980, however there are some provisions that are no longer relevant, such as obliging that a child had the opportunity to be heard during proceedings and the need to conclude proceedings within six weeks.
In relation to the main divorce proceedings, so long as the divorce is not contested, it is not generally necessary for the parties to attend the hearing. It is only in the rare cases were the divorce itself is being contested that the parties would have to attend to give evidence. Otherwise it should be possible for the divorce itself to be dealt with as a paper-based exercise.
The division of the marital wealth as well, as arrangements for any children, are determined separately from the divorce proceeding itself. If the parties can reach an agreement between themselves or via mediation or other alternative dispute resolution methods, then again it will not be necessary to attend court in England.
Where there is not agreement in relation to the division of finances, it will be necessary to issue financial remedy proceedings. This initially starts with a Financial Dispute Resolution (FDR) Hearing and the judge will hear that arguments from both sides. This is a final attempt to resolve the matter before proceeding to a contested court hearing and it is important to attend the FDR to ensure you give full details to get the best settlement in your situation. If the matter proceeds to a contested hearing, then it will be necessary for both parties to attend and give evidence.
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.