How British Expats Can Still Divorce in England or Wales
Living and working abroad can often be financially and culturally rewarding but may also put great strain on a marriage, particularly where one spouse stays behind. Re-location abroad can also be the final straw for a marriage that is already near breaking point. You may believe that once you have left England and Wales you cannot get divorced here, but you might well be wrong. The English courts will have “Jurisdiction” (this simply means the power to accept your divorce petition and grant a divorce) provided that certain conditions are satisfied. The same rules apply to Wales, which is included with England below solely for brevity. Different rules apply in the rest of the UK.
What doesn’t matter?
You may be surprised to learn that when deciding on jurisdiction it does not or may not matter –
- Where you were married
- Where you were born
- Where you currently live
- What your nationality happens to be
What does matter?
The easiest way of establishing jurisdiction is by relying on “Habitual Residence”, which basically means living in a particular country regularly. Fortunately habitual residence is largely a common sense test, not a legal conundrum. Obviously a British expat is very unlikely to be habitually resident in England, but all is not lost. If your spouse is still living in England then you can issue a divorce petition here – so far so easy, and not a lawyer in sight.
If neither spouse is habitually resident in England, that’s not necessarily the end of the story, but it can get much more complicated. You can still issue a divorce petition in England if at least one of you, or possibly both of you, are “domiciled” in England. Domicile is a more artificial concept than habitual residence, and a person is domiciled in the country with which he or she has the closest connection and which is his/her long term permanent home. Crucially for expats, a person may be domiciled in England even if he/she is habitually resident in a different country.
There are 3 different kinds of domicile, any of which can be sufficient to give jurisdiction to the English courts, but you can only have one type of domicile at any one time. Firstly, everyone is born with a “Domicile of Origin”. It is often mistakenly believed that this is the country of one’s birth, but in fact it is usually the existing domicile of your father. Secondly, if a father changes his domicile before his child becomes an adult then the child will also automatically acquire the same new domicile, and this is known as a “Domicile of Dependency”. Things can get horribly complicated if the father was not alive when the child was born, or the parents were not married, or they separate before the child reaches adulthood, or your spouse lives in another EU country or is a National of a different EU country. In those more extreme circumstances you really need to think about getting solid advice from a specialist lawyer. This advice should be based on a full and accurate statement of facts if it is really important to decide where best to get divorced.
Finally, it is possible to replace a domicile of origin or dependency with a “Domicile of Choice”. This happens when you establish a close connection with a different country from your domicile of origin, intending it to be your permanent home for the foreseeable future. A domicile of choice almost inevitably involves habitual residence in the new country, but that alone is not enough. The key issue for expats is usually whether they have gained a new domicile of choice in the country in which they are now living and working or whether they have retained their domicile of origin in England, which substantially increases their chances of being able to get divorced in this country.
For the rich and famous, the venue for divorce proceedings can be crucial. Not only do the actual grounds for divorce vary from country to country, but even more importantly the financial outcome can be hugely different depending on the law applied to the facts of the particular case. For this reason London is often referred to as the divorce capital of the world. Cases appear occasionally in the Law Reports where the parties have spent a fortune on legal costs arguing over which country has jurisdiction to deal with their divorce, and the specific facts are very important in those circumstances.
Choice of venue can also be an important consideration for the rest of us however. England usually feels like the natural and familiar choice on divorce for expats born and raised here, even more so if children of the family are centred here or there is a family home or other property within the jurisdiction.
Sometimes a divorce may be on the cards, but proceedings are not imminent because for example a longer period of separation is required before the parties have grounds for divorce. In that situation it might be very helpful for an expat to obtain early legal advice, firstly as to where it would be most advantageous to apply for a divorce. If the answer is that England (or some other country) is the best option then one can review the issue of jurisdiction generally at that early stage. It may then be possible to take steps to establish a domicile of choice in the preferred country by the time a petition is to be issued. It can also be very helpful to review the financial issues that are likely to arise in divorce proceedings, such as spousal maintenance and the parties’ reasonable housing needs after their final separation. Like many things in life, preparation and forward planning can smooth the path to a successful outcome.About the Author: Bryan Reed is a specialist family lawyer with London firm Josiah-Lake Gardiner. Bryan also runs online divorce service Justdivorce.co.uk and can advise British expats who want to use the English courts to obtain a divorce.