The ever increasing movement of British expats across the globe means greater complications for those individuals if their marital relationships break down whilst they are overseas.

A number of potential difficulties arise depending on when and where relationships were forged.  For example, is the expat working abroad merely to bring greater financial benefits for a family they have left behind in the UK?  Or has the whole family moved abroad to start a new life?  Maybe the expat has married a local or another foreign expat they met abroad?  All of these situations give rise to different legal and financial considerations when a marriage breaks down and can make what is already a stressful time even more difficult.  So what are the main considerations?

Where can divorce proceedings be started?

Each country or state has different requirements: in some cases, being a national is enough to start proceedings; in other cases a period of residence is required; and in others just being in the country at the time of issuing the proceedings is sufficient.

A common misconception is that someone can get divorced in England (or Wales) simply because they are a UK national or because they got married in England.  This is not necessarily the case.  Similarly, people discount England as a possibility as they are no longer resident here.   This also may be wrong, depending on individual circumstances.  In order to start a divorce in England, you only need to rely on the habitual residence or domicile of one of the spouses.  Therefore if a husband or wife has remained in England then either they or the expat can start proceedings here.   If both spouses are living abroad, then at least one spouse would have to be domiciled in England in order to start proceedings here.  Domicile is a tricky concept and is not the same as nationality (citizenship).

There are two main types of domicile: domicile of origin and domicile of choice.

Every person has a domicile of origin which is based on the domicile of one of their parents at the time of birth (their father if their parents were married or their mother if not).  Therefore don’t assume that your domicile of origin is English just because you were born here and have a British passport.

Every person can have a domicile of choice that is different to their domicile of origin.  To have a domicile of choice, one must have a settled intention to remain in the particular country where one is also resident.  Residence alone is not enough for domicile and so many British expats may remain domiciled in England.  This would be enough to start proceedings here.

Remember that Scotland and Northern Ireland have different laws to England and Wales, and therefore a person’s domicile could, for example, be Scottish.

Is England the best place to get divorced?

If you are merely working abroad and your family and assets are in England then England would appear to be the natural choice.   Divorce in England is a relatively quick and straightforward procedure if you and your spouse can reach an agreement.  Indeed, where there is an agreement, neither party need step foot in court and everything can be dealt with from abroad through English solicitors.  However, what if you are the husband and the main earner?  England is arguably the worst jurisdiction for husbands in the world.  Under English law, an equal division of capital and ongoing maintenance is commonplace, regardless of the parties’ roles during the marriage.   At the same time, if there are English assets, a foreign court may not be willing to make an order over those assets or the order of a foreign court may not be enforceable in England.

If you are the wife, then the terms of an English order may be more favourable.  However, if the assets or your husband are abroad then an English order selling a foreign property or requiring your husband to pay maintenance may be ineffective.

Should proceedings be started abroad?

There are obvious issues with language and lack of familiarity with a foreign country’s approach.  Some countries will apply English law if that is the common nationality but others will apply local law.    Depending on whether you are the husband or the wife there may be advantages to this.  However, in every case you need to do the following:

• Consider whether the orders made will be effective (i.e. where are the assets / the payer?)
• Consider tax consequences, both where the order is made and where it is to be implemented.
• Bear in mind that local courts may apply English law incorrectly or that local lawyers (who are English qualified) may be out of touch with English family law which is constantly evolving.
• Note that even if proceedings are started in that foreign country, your spouse might start separate proceedings in England or another country (either where you are domiciled or a national or where they are).  It is not always a question of where proceedings are first issued.  As between England and other EU countries, this is usually conclusive but different tests apply where one set of the proceedings are outside of the EU.
• Remember it may still be possible to start financial proceedings in England even after a foreign divorce, so all is not lost.

Each case has different considerations and therefore it is vital that you get the right advice.  In most cases, advice should be obtained from both a locally qualified lawyer and a lawyer in England.

©Daniel Eames