Moving abroad for work or to retire in the sun may seem like an ideal, especially on a wet July day. However, with almost half of marriages ending in divorce for many couples the dream can become a nightmare. Whilst it is bad enough to go through the upset and trauma of divorce in the UK, the problems for expats are very much worse in many cases.
Livign abroad can mean feel someho you are lacking from the help you could obtain in the UK, the Citizens Advice Bureau, the local solicitor , the powers of the English courts and their ability to dispense swift and fair justice, and you really can’t face the thought of going to a lawyer in the country where you now live, what with the language problems, the strange laws and customs, and may you have heard that it takes years to get a divorce locally.
The best place to divorce
Under EU law you can obtain a divorce in EC member states if you are you are a ‘habitual resident’, (which is open to interpretation by a Judge) but it will often be more complex and a very lengthy process.
In many instances expats can divorce in England on the basis that they are ‘domiciled’ in the England and Wales. Domicile is a somewhat obscure legal concept but means, basically, that England is legally your ‘home country’ and that gives the English courts the jurisdiction to grant you a divorce. You would normally not need to return to England and do not necessarily need to have an English address.
If you opt for an English divorce
- Neither party has to appear in court at any stage
- The whole case only takes around 16 weeks or so
- The court does not need to deal with matrimonial property or finances in order to grant a Decree
- The court does not need to consider custody issues, (as ‘custody’ has been abolished in the UK) in order to finalise the divorce
In short, an English divorce these days is quick and inexpensive.
Few law firms in the UK are able to deal with this type of case, as much specialist knowledge is required, including such things as the EU Council Regulations on Divorce, and some other ‘gems’ from Brussels dealing with ‘Euro’ aspects of cross-border divorce procedure and recognition of court orders between member states.
Get the best advice
Many ‘high street’ solicitors in England will tell you that you need to return to England and live here for 6 months before you can use the English courts but this is not the case. So long as you still consider yourself ‘English’ and it cannot be said that you have cut all ties with England never to return, while also being fully integrated into your new country of residence so that you are to all intents and purposes now a citizen of the new country, then you can divorce in England.
A word of warning however, many ex pats living in Europe will be able to seek a divorce both in England and in the country they are living in; the Courts of both countries will have jurisdiction. The possibilities for financial provision on divorce may however be very different and you may be far better off divorcing in one rather than the other. You will need to take expert legal advice in both England and the country you live in and be prepared to move quickly.
Time is of the essence
There is an agreement between European member states that whichever country divorce proceedings are issued in first takes priority. To put it very simply where two countries could deal with divorce proceedings it is a case of ‘first come, first served’; the person who issues the proceedings first secures the jurisdiction of the Court and it can not then be changed just because the other party would prefer to have the divorce proceedings in the other country. The reason this is so important is that it may be better for you in terms of a financial settlement to divorce in one country but better for your spouse if you were to divorce in the other.
It is the general view that England is more generous to wives on divorce but only a local lawyer can properly advise you on what provision there might be for you and any children on divorce. You need to know also whether your spouse might be much better off if he or she sought to divorce you in the country you live in rather than in England so you can assess the risk if your spouse ‘gets in first’.
If you have been advised that one country will look more favourably on your divorce and claim for financial support from your spouse then to secure the jurisdiction of that country you need to issue divorce proceedings as quickly as possible and without alerting your spouse to hopefully avoid the risk of them issuing proceedings in the country that may be less favourable to you.
Divorce proceedings could be issued in England on your behalf here in a matter of days, all that is required is your original marriage certificate and the divorce petition can be drafted quickly with your input. Woolley & Co can do this on your behalf for a fixed fee.
Financial settlements and matrimonial assets
Finally, a general word about matrimonial assets. The English courts do not automatically deal with finances during the divorce case. Indeed the Court can not do so until after Decree Nisi has been pronounced. In fact the courts only become involved if the parties cannot reach agreement. Any financial or property disputes are then dealt with as a financial remedy case.
It is the disputes about finances which take longer, with parties having to attend court hearings. By the time the average party has paid the court fees, solicitor’s fees, barrister’s fees, property valuers fees, actuary’s fees, forensic accountant’s fees and more (all plus vat) he or she will need to have a very understanding bank manager. So, most solicitors will strongly advise you to agree even if it means compromising on some element. Once agreement has been reached, the court will issue what is known as a Final Order by Consent without the need for any court hearings.
One other aspect to consider is that if you have assets or property overseas it may be that the English Courts will have limited powers to deal with assets and can only make orders against your spouse to deal with these assets in the way the Court directs rather than the Court being able to directly control the assets. Again, if you have assets overseas, you need to consider taking specific advice from a lawyer in the country where you are living as well as speaking to a specialist family lawyer in England.