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 :
- Unreasonable behaviour
- 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.