How Brexit Could Affect Your Divorce If Your Ex Moves Abroad

Where Should I Divorce?

If you or your ex-partner lives abroad and you would like to start divorce proceedings, it may be possible for you to use a Family Court in the UK, but this will vary depending on your unique circumstances.

To qualify for a divorce in England and Wales, you must meet at least on of the following criteria:

• Both spouses are habitually resident in England and Wales
• The respondent is habitually resident in England and Wales
• The applicant has been habitually resident in England and Wales for at least one year prior to the divorce application (or only 6 months if he/she is also domiciled here)
• One spouse is domiciled and habitually resident in England and Wales, and has lived here for at least six months prior to the divorce application
• Both spouses are domiciled in England and Wales
• One spouse is domiciled in England and Wales

The Rules of England and Wales Divorce Courts

If you would like to apply for a divorce in England and Wales, you must meet certain rules and criteria.

Firstly, your marriage must be recognised as legitimate in the foreign jurisdiction. Your wedding must have been carried out in the exact legal manner that is required by law of the country where you married.

As long as your wedding was conducted in line with the rules where it was held, it’ll be recognised as legitimate in the UK. You must then show that either you or your ex-partner are habitually resident or domiciled in England and Wales as set out above.

If the above criteria have been met, the England and Wales Courts will allow divorce proceedings to start.

What is ‘Habitual Residence’?

‘Habitual residence’ is commonly used to refer to where you live and work. In general terms, it’s where you have the closest ties and where your life is mainly based. To state that you are a habitual resident of a location, you must be completely settled there and intend to live there for the foreseeable future. If you have any children, they must go to school in the same area.

As long as either you or your ex-partner are considered to be ‘habitually resident’ in England and Wales, and if you are the applicant  you have been  resident in England and Wales for a year before starting divorce proceedings, (6 months if you are domiciled in this country as well) you may  apply for a divorce in the UK.

What does ‘Domicile’ mean?

Domicile is very similar to habitual residence. Your domicile is the jurisdiction in which your permanent home is. If you’re away from your home, you must have intentions to return. But if you have moved somewhere else and established a permanent home elsewhere, that is considered to be your domicile.

Do I Need to Divorce in the Country I Married?

Typically, there is no requirement by law to divorce in the country where you married. As long as your marriage is legitimate and at least one of the spouses are habitually resident in England and Wales, your divorce can usually take place in England and Wales.

This means that even if your wedding took place abroad under the rules and laws of a foreign country, you could still divorce in England and Wales.

International Divorce

The first step to any divorce is for one of the spouses to apply to the Court. Once the application has been approved, the Court will then send a copy to the other spouse.

Prior to the no-fault divorce being introduced, serving divorce papers internationally usually caused delays. But with divorce applications now being processed online, papers can be served via email instead with no delay.

If you or your spouse lives abroad, whether that’s within the EU or elsewhere, you will need to consider which country’s law applies. If divorce proceedings are issued in England and Wales as well as another country, the Court in England in Wales may stop the proceedings here if they feel that it’s more appropriate for the divorce to be carried out in the other country’s jurisdiction. The court in another country can also decide that the court in England and Wales is the more appropriate and stop the proceedings in the other country.

Should I Divorce in England and Wales or Abroad?

Divorce laws vary hugely all around the world, so where you carry out your divorce proceedings will have a big impact on your life. For example, some countries may be more likely to favour you or your ex-partner regarding financial settlements.

Where you decide to divorce will also affect how much you are required to pay for a divorce, how long the divorce will take to finalise, how childcare arrangements will be made, and whether any orders from the Court are easily enforceable.

For this reason, it’s important that you look into your legal rights in the country you would like to divorce in. These may differ hugely depending on the jurisdiction.

If you’re unsure where you should get a divorce, it’s best to seek legal advice from an expert Divorce Solicitor first. We can help you understand how where you get divorced may affect you and your children. We can explain the differences between what a divorce could look like in England and Wales versus abroad.

We know that legal jargon can be complicated to understand, so we’ll always communicate with you in plain English, so you know exactly where you stand.

Will My Prenuptial Agreement Be Valid?

If you’ve made a prenuptial or post nuptial agreement, while you can choose which country your divorce will be handled in, you must also understand that your prenup may not be valid.

Just because you have a prenuptial agreement in England and Wales, that doesn’t mean that it will be valid in another country.

That being said, a prenuptial or postnuptial agreement may not be upheld even in a divorce in England and Wales. While it can be used in Court as evidence of a prior agreement, it’s possible that it’s not upheld, depending on your circumstances.

If you’re unsure about whether or not your prenup will be valid during your divorce, you can speak with our Divorce Solicitors who can offer you expert advice on your unique situation. We’ll look into your prenuptial agreement, when it was signed, and the likelihood of it being upheld during the divorce proceedings.

UK Divorces and International Marriages

If your wedding ceremony was conducted abroad, the UK can still recognise your marriage. But the law isn’t as clear cut as it would have been if your wedding was done in the UK.

To determine whether or not the UK recognises your marriage, it will look into the ‘formal validity of the marriage’ and the ‘essential validity of the marriage’.

Formal validity of the marriage refers to if the legal requirements of the country where the wedding took place were adhered to. If you met the basic legal requirements for a wedding ceremony, regardless of where it was done, it will be recognised in the UK, and you can start divorce proceedings in England and Wales.

If, however, your wedding ceremony didn’t meet the legal requirements at the time you married, the marriage would usually not be recognised in the UK. As a result, you will not be able to divorce in England and Wales.

How Simpson Millar Can Help

When it comes to applying for a divorce that has international aspects, it’s important to instruct a solicitor who understands international divorce laws. Our expert team can help you to navigate through the complex international divorce law system while explaining the process to you every step of the way.

While divorcing a spouse who lives abroad can be complicated, you may still be able to divorce in England and Wales.

Contact our team today for a free assessment on your case. We’ll listen to your circumstances and offer advice on the best legal route for you. It may feel overwhelming at first, but our aim is to make the process as simplified as possible whilst achieving the best outcome we can for you and your children.