Divorce advice for ex pats (2)
Divorce in England (or Wales) is available to people who do not live here. The most obvious category of people who have an English domicile (and who are thus able to obtain a divorce in England) are those who are working for the time being overseas and this can apply to either or both partners. Notice that only one or other spouse needs to be “domiciled” here (or habitually resident ) in order for either to be able to lodge a divorce petition in the English courts. The other spouse can be of any nationality, habitually resident anywhere or domiciled anywhere.
And one can live overseas for a very long time without necessarily losing one’s English domicile. This is because one can live overseas with the express intention of returning to England at some time in the future. If that is the case one’s English domicile is not lost because one happens to be overseas. In fact, intention plays a very important role in deciding where one has one’s domicile and it is quite difficult to prove a person’s intention one way or the other. In practice, if one is British it is usually quite easy to petition for divorce here although one happens to be living overseas. And it is not usually necessary to return to the UK in order to be able to do so.
We have seen it said that a British citizen working overseas and wishing to obtain a divorce in England should contact a London solicitor because they have “more experience” of domicile issues. Actually, one needs to be careful before taking such advice. The fact of the matter is that many London firms – and particularly West End and City firms – charge at very high rates. Whereas this can obviously be justified in relation to their overheads and normal client base it may be disproportionately costly for the individual of average means. Firms with an international presence are not normally geared to the needs of the man in the street and they charge accordingly. Divorce, on the other hand, is precisely the sort of problem which does affect the man (or woman) on the street and so you should always check charging rates before taking advice such as this. The more important thing is to choose an experienced solicitor in whom you have confidence and who really understands questions of domicile and jurisdiction.
You may also have realised that there can be cases where it would be possible for a divorce to take place in more than one country. In such cases the spouses may be able to “jurisdiction shop” and use the courts of the country which offers them the best deal. There are rules to decide conflicts of jurisdiction of this sort.
It has to be said that since the coming into force of the European Directive often referred to as ‘Brussels II’ whether or not the English courts have jurisdiction in any given case has become quite complex because there are so many different permutations. Indeed, many practitioners do not necessarily understand the available choices when there is an overseas element. Sometimes the very last thing one should be advised to do is to petition for divorce in England because of the consequences when it comes to resolving the financial issues arising from the marriage. Ex pats have a much greater range of options open to them in this respect.
Please email if you need specific advice about this. The concept of “domicile” is quite technical and determining whether the English courts have jurisdiction to grant a divorce where either or both parties live outside the UK can be complex.
Jurisdiction shopping for divorce in England.