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If you are considering applying for a divorce in England or Wales, please contact our expert Family solicitors, who can provide professional legal advice:
You may be able to apply for a divorce in England and Wales if you currently live overseas or you are not a British passport holder in certain circumstances.
You must fall within certain criteria outlined below in order to be able to issue divorce proceedings within this jurisdiction.
The Courts in England and Wales have a very wide discretion to make orders for spousal maintenance compared to other jurisdictions, which may not recognise the right to apply for spousal maintenance or, if they do, only in restricted cases for a limited period of time.
Spousal maintenance is income payable by one former spouse to the other which may be paid for a prescribed period or their lifetime.
Do the English courts have jurisdiction to deal with your divorce if you live outside the UK?
If you live outside of the UK, the English courts can only deal with your divorce if any 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?
The meaning of habitual residence is not straightforward. However, a person can only have one habitual residence at a time.
The key to a habitual residence is to establish where a person is based and where they organise their domestic, financial and business affairs, and organise their healthcare and bank facilities.
The meaning of habitual residence is not straightforward. However, a person can only have one habitual residence at a time.
The key to a habitual residence is to establish where a person is based and where they organise their domestic, financial and business affairs, and organise their healthcare and bank facilities.
If you have moved to the UK from abroad to gain habitual residence, 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 be able to show that you intend to establish the centre of your interests in the UK and have a stable presence in the UK.
They will consider all relevant factors to establish whether your life is centred in England and Wales, including:
- Your nationality and language;
- Where you own property;
- Where your banks, pensions and investments are located;
- How much time you spend in England and Wales in a typical year;
- The motivation behind your move to England and Wales;
- Where members of the family live;
- Where you work, train or study;
- Where you are registered to vote;
- Where any children of the family go to school;
- Where any pets of the family reside;
- How well the family is integrated into the local community;
- Which languages are spoken at home;
- Whether local tax is paid;
- Where your mail is sent;
- Where you are registered for the doctors or dentist;
- Whether you have any beauty or hair appointments;
- Where you enjoy hobbies, such as a gym or sports club memberships.
The relevance and significance of the above factors varies in each case. Essentially, there must be a genuine connection between you and England and Wales.
What is domicile?
Your domicile is the place where you maintain a permanent home.
Your domicile is not necessarily the same as your nationality or the country in which you are living, and you can only have one active domicile at a time.
Your domicile may also change as your circumstances change.
Two types of domicile are relevant in the context of divorce:
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.
In deciding whether you have acquired a domicile of choice, the court will consider a wide range of factors, including whether you:
• Retain a home in England and Wales;
• Spend the majority of your time in England and Wales;
• Have become or is becoming a citizen of England and Wales;
• Work in England and Wales;
• Send your children to school in England and Wales;
• Pay local taxes;
• Have your mail sent to an address in England and Wales;
• Registered with a beautician or hairdresser in England and Wales;
• Are a member of a gym or sports club in England and Wales.
Commencing proceedings
It may be possible for spouses to commence divorce proceedings in multiple jurisdictions.
Before Brexit, the jurisdiction in which the divorce petition is issued first seizes control of proceedings.
Post Brexit, where there is a dispute as to which jurisdiction deals with your divorce, the English and Welsh courts will revert to what is called "forum non conveiens", where they will assess which is the most appropriate court to hear the case and consider where you have the closest connection.
It is still, however, imperative to take urgent advice to protect your position in England and Wales as there may need to be a contested preliminary hearing to determine in which country the proceedings are to continue and which country divorce proceedings were issued in first may be a relevant consideration in the law of the competing jurisdiction.
Financial matters and other outcomes can differ depending on which country legal proceedings are issued in.
It is, therefore, vital to act quickly and take urgent advice to protect your position.