Does it matter in which country divorce proceedings are issued?
The jurisdiction where your divorce takes place can substantially impact your financial settlement.
Each jurisdiction has its own set of rules for resolving finances on divorce, and you may end up with vastly different outcomes depending on where you issue your divorce proceedings.
The time and costs involved in obtaining a divorce can also differ between jurisdictions.
You will need careful advice to ensure that your divorce proceedings take place in the jurisdiction that most benefits you.
England and Wales will often be the jurisdiction that is most advantageous to the financially weaker spouse; as compared to other jurisdictions, courts in England and Wales have a duty to ensure fairness and to ensure that each party's needs are met on divorce, with wide discretion to make orders for spousal maintenance.
Spousal maintenance is a payment made by a former spouse to the other spouse over a specified period following the divorce or for their lifetime.
Other countries may not recognise the right to apply for spousal maintenance, or if they do, it may only be in restricted cases for a limited period.
I am based overseas - can I issue divorce proceedings in England and Wales?
You may apply for a divorce in England and Wales if you currently live overseas or you are not a British passport holder in certain circumstances.
However, you will need to satisfy certain criteria outlined below in order to issue divorce proceedings.
What criteria do I need to satisfy?
If you live outside of the jurisdiction, whether you can issue proceedings for a divorce depends on the legal concepts of 'habitual residence' and 'domicile'.
You will need to demonstrate a sufficiently close connection to England and Wales.
The courts in England and Wales can, therefore, only deal with your divorce if any one of the following apply:
- You and your spouse are habitually resident in England and Wales;
- You and your spouse were both last habitually resident in England and Wales, and one of you continues to reside there;
- Your spouse is habitually resident in England and Wales;
- You are habitually resident in England and Wales and have resided here for at least one year immediately before you make the application;
- You are domiciled and habitually resident in England and Wales and have resided here for at least six months immediately before you make the application;
- You and your spouse are domiciled in England and Wales;
- Either you or your spouse are domiciled in England in Wales.
What is 'habitual residence'?
You are habitually resident in England and Wales if you have established your permanent or centre of interest here.
To satisfy this, you usually will need to live or spend most of your time in England and Wales.
You may only have one habitual residence at any one time.
The key to demonstrating a habitual residence is to establish that you organise your domestic, financial, and business affairs and organise your healthcare and bank facilities in England and Wales.
Essentially, if you have moved from overseas, you must be able to show that you intend to remain in England and Wales, having transferred your life and your affairs here.
You must, therefore, demonstrate that you intend to establish your life in England or Wales and have a stable presence in the UK.
What is 'domicile'?
Your domicile is the country that you treat as your permanent home.
This does not necessarily need to be the same as your nationality or even the country in which you are living.
You can only have one active domicile at a time; however, your domicile may change as your circumstances change.
In the context of divorce, two types of domicile are relevant:
1. Domicile of origin
Domicile of origin is your domicile at birth. If your parents were married when you were born, it is your father's domicile.
If your parents were unmarried or your father died before birth, it is your mother's domicile. Where you were born is irrelevant.
Your domicile or origin can never be permanently removed but can be replaced by a domicile of dependency or choice.
When your domicile, choice, or dependency is lost, your domicile of origin will resume.
2. Domicile of choice
You will acquire a domicile of choice when you are resident in England and Wales and intend to reside here permanently and indefinitely.
How soon shall I commence divorce proceedings in England and Wales?
Prior to Brexit, a rule existed which provided that the country where the divorce application was first made was the country that dealt with the divorce.
Accordingly, couples would race with their spouse to commence proceedings in the jurisdiction most advantageous to them.
This rule no longer exists. Rather, the country with the closest connection to the couple will deal with the divorce.
However, there may need to be a contested preliminary hearing to determine which country is most appropriate and more closely connected to the couple for the proceedings to continue.
It is, therefore, still important to be quick when issuing divorce proceedings.
It is advised that you take urgent advice to protect your position in England and Wales, particularly because the country where divorce proceedings were first issued can be relevant in determining which country has the closer connection.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.