Our international family lawyers regularly advise on cases involving complex international aspects

Can Foreign Nationals Living Abroad Divorce in England & Wales?

Outcomes vary geographically It is crucial to obtain timely advice on international family law issues

 

The international family law issues that our clients face vary tremendously. We have provided guidance on some of the questions that we are commonly asked by foreign nationals living abroad who want to divorce in England & Wales:

  • Can I divorce in England even if I’m not from here? Yes. One of you requires a link to the jurisdiction through habitual residence or domicile. If you hold assets in this jurisdiction, it can be advantageous to divorce in England too.
  • Do I have to divorce in the jurisdiction I got married in? No. Where you live today, or where you hold your assets today, is relevant. The location of the marriage ceremony is not relevant.
  • What are the advantages of divorcing in England? The English Courts, particularly in London, are very experienced at dealing with cases with international aspects. Clients who live in very small jurisdictions may also feel that the larger London courts provide a greater degree of anonymity than their own jurisdiction where the client may already know the lawyers, judges, and those involved with their businesses. They may use the English courts because they want to keep their divorce private.

Jurisdiction for divorce in England & Wales (and indeed throughout the UK) is presently based on a European convention, Brussels II.  This may change following the UK leaving the European Union but we do not yet know what will replace it. Brussels II provides that an EU state will have jurisdiction if:

  • Both spouses are habitually resident;
  • Both spouses were last habitually resident and one remains;
  • The respondent is habitually resident;
  • The petitioner has been habitually resident for at least 12 months (or 6 months if returning to a home jurisdiction); or
  • Both spouses are (in the case of UK & Ireland) domiciled here.

Once a valid divorce petition has been issued in one EU state, another EU state cannot entertain proceedings – this is the first in time rule. If none of the above criteria are met and no other EU state has jurisdiction under these criteria, proceedings may be started in England & Wales if one of the couple is domiciled here. The first in time rule does not apply if no EU state has jurisdiction and instead any jurisdiction dispute will be determined on the balance of convenience. The EU states covered by Brussels II as at May 2017 are found here.

  • I am a foreign lawyer acting for a foreign national who is divorcing. Would my client be better off issuing proceedings in England rather than my country? This very much depends. There are various claims that may be available for both capital and income (spousal maintenance and/or child maintenance). The English court has a large discretion when making orders for financial remedy upon divorce and each case will turn on its facts. This said, England & Wales has a reputation for being a favourable jurisdiction for the financially weaker spouse as it does not discriminate between financial and non-financial contributions.  It can also make long term spousal maintenance orders which may be less common in other jurisdictions.