Divorce advice for ex pats

Divorce in England does not require either spouse to be physically present in the country. In the great majority of cases neither party needs attend court to be able to obtain a divorce and so it is perfectly feasible to obtain a divorce in England despite the fact that both spouses currently live overseas. For instance, two British nationals who were married here but who happen at the moment to be working in, say, Hong Kong can obtain a divorce in England because both are almost certainly still domiciled in England although they may happen to be working temporarily overseas. And they need not come to England to get the divorce. It can be done at a distance. It is not normal to have to attend court to have a divorce.

The jurisdiction to grant a divorce in England or Wales depends upon whether at least one of the spouses has sufficient connection with the country. And it is “England or Wales” because Scotland is a separate legal jurisdiction. England and Wales form one divorce jurisdiction within the United Kingdom and Scotland forms quite another.

The rules for jurisdiction are quite complicated, especially after a Directive of the European Union usually called ‘Brussels II’ came into force in English law. The English courts have jurisdiction to grant a divorce in England if either spouse

(a) is domiciled in England or Wales when the proceedings are begun, or
(b) is habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun.

The rules are rather more complicated than this (so do please ask if you are in any doubt) but the above is a summary which covers the great majority of cases.

Paragraph (b) means in effect that anyone of whatever nationality and wherever they were married can obtain a divorce in England so long as they have been habitually resident here for a qualifying period of one year immediately before issuing the petition. In practice this doesn’t cause much difficulty because most people expect to be able to obtain a divorce where they are habitually resident and after a year most people would regard themselves as habitually resident here.

What is more significant is paragraph (a) because “domiciled” is not the same as “resident”. It is much wider. This is what enables many people who live outside the country to obtain a divorce here although they do not actually live here at the moment. Naturally, one must have sufficient connection with the country to establish the necessary domicile but it is important to understand that one does not have to actually be in England in order to use it as a divorce forum. And being ‘domiciled’ here for divorce purposes is different from being domiciled here for tax purposes. The two are not connected.

Incidentally, the converse of the above rules is that being married in England is not in itself sufficient to obtain a divorce here. If, say, two Chinese nationals marry in England while they are students and then return to live in China they cannot obtain a divorce in England once they have left the country. That is because neither of them is either domiciled or habitually resident here. They could obtain a divorce before they left if the marriage has lasted more than one year and one of them meets the habitual residence requirement but after they leave they lose the right to seek a divorce in England unless they return here to live.

Please continue to find out more about the jurisdiction requirements for divorce in England.

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