Many divorces have an international element. For example:
- A British national who married in the UK or elsewhere may be living abroad when he or she wishes to start divorce proceedings.
- A non-British national who lives abroad but has some kind of connection to the UK may want a British judge to decide the terms of his or her divorce.
(Note, when we use the terms ‘British’ and ‘UK’ here we are referring only to the courts of England and Wales. Courts in Scotland and Northern Ireland have different family law procedures.)
Why Do People From Abroad Use British Divorce Courts?
English divorce courts are usually in high demand from individuals based overseas. For British expats, there is the attraction of a familiar legal system and language. And although family courts in general face pressure, divorcing in England and Wales can, depending on the circumstances of your case, still be relatively efficient.
In addition, courts in London and other main British legal centres are known for awarding settlements that are favourable to the financially weaker spouse. This explains why so many individuals go to great lengths to secure the UK as the decision-making venue for their divorce.
Often more than one country will be able to hear divorce proceedings. If this is the case, the country in which proceedings are issued first will usually be the one to decide all issues. And because rules differ widely it is important to get legal advice early on if you think your spouse may object to your choice of country.
When Can Someone Living Abroad Get A UK Divorce?
To get a divorce in the UK you need to establish jurisdiction. And this means showing a connection to the UK. For the moment, the law is set out in what is known as Brussels II Revised. For those wishing to divorce within the EU the rules are that you can seek a divorce in the UK if:
- You and your spouse are habitually resident here
- The last place both you and your spouse were habitually resident was the UK and one of you remains living here
- Your spouse is habitually resident in the UK
- You, not your spouse, are habitually resident here but you have been here for a year before starting the divorce process
- You are domiciled and habitually resident and have lived in the UK for six months before issuing a divorce petition
- Both you and your spouse are domiciled here
If the UK or no other EU state has jurisdiction under any of the above rules, you can invoke the ‘residual jurisdiction’ clause in Brussels II. This means reliance on any other rules a country may have on jurisdiction. In England and Wales this means you could seek a divorce here if either you or your spouse is domiciled here when you present your divorce petition.
What Is Habitual Residence?
It is clear from the rules above that the concept of habitual residence is crucial when attempting to secure UK jurisdiction for your divorce. There is no precise definition of the term – the courts will look at all the facts of your particular case when making a decision.
But the President of the Family Court Sir James Munby has suggested it is where an individual’s ‘centre of gravity’ is. And this might be a useful way of gauging whether or not you have habitual residence in a particular country. Certain factors will help persuade a court that you are resident. These include:
- How long you have been in the country
- How regularly you are there
- Your reasons for being in the country
- Whether your children attend school there
- Whether you speak the language
- The extent to which you have integrated into society
- Whether you pay tax there
- Whether you own property
How Do I Demonstrate Domicile?
Looking at the criteria under Brussels II above, it is sometimes also necessary to show domicile in order to divorce in the UK. This is usually when you are unable to establish habitual residence of you or your spouse.
You can assert domicile of origin or domicile of choice.
Domicile of origin is the country in which your parents were domiciled when you were born. You can change this through domicile of choice. To do so you must be able to show that you want to be governed by the legal system of the country of your domicile of choice until you die. This means you could move away from the UK but still remain domiciled here if your intention is to return at some point in the future.
When Am I Unable To Get A British Divorce?
If you do not meet any of the criteria set out in Brussels II – and this includes satisfying the definition of domicile and habitual residence where necessary – then you will be unable to divorce under the laws of England and Wales. If your spouse has commenced proceedings in another jurisdiction you cannot start proceedings in the UK.