The British courts have become known for international divorce. But getting married in England may not be enough to entitle you to get divorced here if you live abroad now.
I speak to many British nationals living abroad who want to take advantage of the English legal system because their marriage has broken down and they are looking to divorce. This seems to be even more common since the tabloids started naming London as the divorce capital of the world as a number of high profile, big money cases have been heard here in the UK.
But it’s not as simple as electing to divorce here. You have to be allowed to do so. The rules about whether you can apply for a divorce under the laws of England and Wales are referred to as jurisdiction and there are only a limited number of scenarios in which you can in fact apply here. Being a British citizen doesn’t automatically mean you can divorce here.
Many Brits abroad believe that because they married in England they can divorce in England, regardless of where they now live. This is not automatically the case, you still need to establish jurisdiction.
If you married in England for example but no longer live here you could apply to divorce under UK divorce law if your spouse is resident here in England. If they are not resident here you would need to prove that you (and possibly they too) are domiciled in England or Wales.
Domicile is a legal concept used to link an individual with a particular legal system. Domicile may be of origin; choice; or dependence. Everyone has one domicile and one domicile only. A domicile cannot be lost without another domicile replacing it.
In the scenario where you married in England but neither you nor your partner live here you would need to show that you have retained your domicile of origin here in England, before you could apply through the English courts for divorce. If you can then despite being resident abroad, you may still be able to apply for a divorce here. The situation is however further complicated by whether you currently live inside or outside the EU. If you live within the EU, both parties would need to be domiciled here to allow them to use the English court. If you live outside of the EU you can issue on your sole domicile.
As I hope I’ve shown in just one example expat divorce as we call it is an extremely complicated and specialist area of divorce law. There are some compelling reasons however why people want to divorce using the English court system.
The English legal system is often considered quicker and fairer than many other jurisdictions around the world. Being able to apply for a divorce here gives you the advantage of accessing a legal system in a language you understand. The fact you are living abroad is rarely an issue as most cases are dealt with on paper, meaning you will not have to attend Court.
The issue gets a little more complicated if there are assets that you own abroad as the English court has limited powers to order the sale or transfer of those assets where they are in dispute. Our advice is that it is always best to try and come to an out of court agreement because if you have reached an agreement with your spouse about the sharing of matrimonial assets the Court here will endorse any such agreement that is made with the consent of both parties.
Divorce laws around the world vary quite considerably so it is important to check which would be the most advantageous in your circumstances, if you have a choice where you can divorce, that is. It could mean the difference between being able to make a financial claim against your ex or not, so it is worth taking advice before you make an application. This is especially important as divorce courts in the EU operate a ‘first in’ time system, so once an application has been made in one country, provided jurisdiction is established, you cannot then apply elsewhere in the EU. The situation is slightly different if you or your spouse live in a country outside the EU.
The most important thing, if you are a British expat looking to divorce, is to take advice from a lawyer who regularly deals with expat and international divorce cases.
Expat divorce lawyer