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Can I divorce a spouse who is not in the country?

Date: March 19th, 2018 - Written by: Brookman Solicitors

 

You can issue divorce proceedings against a spouse who is not in the country if:

  • The courts here have jurisdiction to accept your petition and
  • There are appropriate grounds for divorce

International or ‘ex pat’ divorces like this sometimes raise complex issues about property division, maintenance and the care of any children. It’s therefore advisable to speak to a specialist international divorce solicitor before you begin proceedings.

 

Will A UK Court Accept My Petition?

Even if your spouse is abroad you will be eligible for a divorce in England and Wales (family law rules differ in Scotland and Northern Ireland) if:

  • You or your spouse is ‘domiciled’ here when you issue the divorce petition
  • You have been ‘habitually resident’ in England or Wales for at least a year before you issue proceedings
  • You are domiciled here and have been living here for at least six months before you issue the petition
  • The last place you and your spouse resided was here and you are still habitually resident here

 

What Is Domicile?

Domicile is a legal concept used to link an individual to a particular legal system. It is established by a number of factors, including where you were born, where you live now and where you intend to live in the future. We can advise you further on your domicile once we understand your specific circumstances.

 

What Is Habitual Residence?

Courts decide your ordinary place of residence having regard to all the circumstances of your case. These include how regularly you are here and the reason for your stay, whether your children go to school here and how integrated you are into social and family life in the UK.

 

What Are The Grounds For Divorce In England And Wales?

To divorce a spouse who is not in the country you must also establish one of the following reasons for divorce :

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • 2 year separation (by agreement)
  • 5 year separation (without agreement)

 

International Divorce – Serving The Petition

Sometimes it may be difficult to formally serve a divorce petition on a husband or wife who is not in the UK. But it is nevertheless essential to comply with the relevant rules on service. If a spouse does not wish to cooperate with the divorce process you may need to apply to the court for an order of deemed service in order to move the proceedings forward.

In one case Brookman obtained a court order to the effect that it was sufficient to post divorce papers through the door of a wife’s parents in America, We persuaded the court that the parents would undoubtedly pass the papers on to the wife.

 

International Divorce – Jurisdiction Races

Sometimes more than one country could have potential jurisdiction to decide all matters relating to your divorce. If the other country is in the EU the country where the first petition is presented will usually have jurisdiction. So if you want your divorce dealt with by the courts in England and Wales you must serve a petition before your spouse has the chance to do so elsewhere in the EU.

In non-EU countries jurisdiction will be decided on the balance of fairness and convenience. If there is a dispute over jurisdiction it is important to instruct a solicitor at an early stage to ensure your choice of court is granted the authority to decide your divorce.

 

Contact Us

We are familiar with family law systems across the globe and have a wealth of experience in dealing with the unique factors that come into play in international and expat divorce. To get in touch call us on + 44 (0)20 7430 8470 or contact us online.

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Jen Ade 23/07/2020

I had an initial consultation and Henry was well prepared. He gave great advice and followed through quite quickly. He was very helpful.

Chris Mullins 15/07/2020

Henry and team were most professional, considerate and efficient when handling the financial proceedings owing to my overseas divorce. I recommend their services highly. International circumstance was at first to me most daunting and confusing, given each country had its' own unique approach. Thankfully Henry was knowledgeable of the law on either side of the seas and able therefore to provide best guidance and reasoning to me which enabled favourable settlement!

Wim Jansen 24/06/2020

I contacted Brookman to ask for information regarding the validity of an international divorce court ruling. They were very quick in providing me with the right information. When I had another question a few months later around children matters I phoned them again and after taking some background information and contact details they booked me in for a free telephone consultation with 1 of their partners Talitha Brookman. She spent half an hour of her time explaining to me what I could expect and provided legal advice. All was free of charge. I would not hesitate to contact them again should any matter become more formal and have to go through court. The service has been quick, professional and very friendly.

Rebecca Brown 01/06/2020

Highly recommend this firm. Having searched around different firms for advice for some time, I had a free consultation with Henry Brookman. He was incredibly knowledgeable about my complex situation, gave straightforward advice and empowered me to understand exactly how I need to proceed.

Nik Carter 10/05/2020

I recently had a free initial consultation with Henry Brookman via video conference. He was considered and meticulous in his approach and gave me well thought through advice. He followed this up with a letter in writing summarising the advice he gave me. I would thoroughly recommend his services to anyone looking for legal representation in a divorce.