Written by Simon Craddock, Partner and Head of Practice Area, Brethertons LLP
With many people relocating to different countries around the world and couples choosing to marry abroad now, this can sometimes cause confusion as to where people can legally start divorce proceedings if their marriage breaks down. It is not as simple as saying you have to get divorced in the country you were married or the country where you are now living. It is often the case that more than one country is able to process divorce proceedings with an international element. It can sometimes make it a difficult decision if more than one country has jurisdiction because the law is different and there are time and cost implications that come with such a decision. Therefore it is always advisable to seek advice if your marriage has broken down and you do not know which country can and indeed is best for you to get divorced in.
Let’s look at what criteria needs to be met in order to be able to start divorce proceedings in England and Wales.
Does the Court have Jurisdiction?
This is the main question the Court is concerned with in relation to divorce proceedings for international marriages. The Court in England and Wales needs to have jurisdiction in order to proceed with any divorce proceedings.
The Court has jurisdiction if your circumstances meet one of the following:
1. Both you and your spouse are habitually resident in England and Wales when you begin divorce proceedings
2. Both you and your spouse’s last habitual residence was England and Wales and either you or your spouse still live here when you begin divorce proceedings
3. Your spouse (Respondent to the divorce) is habitually resident in England and Wales when you begin divorce proceedings
4. You are habitually resident in England and Wales and have lived here for at least 1 year before the petition is issued at the Court
5. You are habitually resident in England and Wales and have lived here for at least 6 months prior to staring divorce proceedings and you are domiciled here
6. Both you and your spouse are domiciled in England and Wales
Under Brussels II (EU law), if more than one country has jurisdiction and both countries are a member of the EU then the divorce that was issued first by the Courts will prevail over the other. The divorce that is issued later will be rejected and the divorce will then continue in the country where the divorce was issued first. This means the law of that country will govern the divorce proceedings and any associated financial proceedings.
Habitual Residence – This is the country where you live or spend the majority of your time in. It is where you have established the centre of your interests.
Domiciled – This is usually the country you consider to have your permanent home.
If you have separated from your spouse and would like to begin divorce proceedings but are unsure if the Courts of England and Wales have jurisdiction, please contact one of our family experts for more advice.
Simon is a family solicitor and has been involved exclusively in family law since just before he qualified in 1990. He is also Partner and Head of Family law for Brethertons’ Banbury office.
Simon undertakes all areas of family law with a particular specialism in International Child Abduction where he sometimes act as a trained mediator. He finds this work very rewarding and tries at all times to empathise with customers no matter what their circumstances, when they are clearly going through a very stressful time. Simon is a member of the Child Abduction Lawyers Association.