In some divorce cases, where parties are living outside the UK, or are originally from other parts of the world, they may require an expat divorce. It is often of benefit to clients to issue divorce proceedings in the English courts because the proceedings are quicker and cheaper than in other jurisdictions. Also, the English courts may award a party a more generous financial settlement than courts where different laws apply. This is no doubt how London earned its status as divorce capital of the world!
At Linnitts Solicitors we can advise you on all aspects of an expat divorce.
You may require an expat divorce if:
- You are originally from England or Wales but presently live abroad
- You previously lived outside England or Wales and have only recently returned to live here
- You are originally from another jurisdiction but have set up home in England or Wales
- Your spouse lives abroad and there may be difficulties serving them with divorce papers or a dispute as to which court system should have jurisdiction
Am I eligible to divorce under English law?
This depends upon (1) where you are ‘domiciled’ and (2) where are you habitually resident.
Domicile links an individual to a particular legal system. It takes into account where you were born as well as where you are living now and your intentions for the future.
Habitual residence refers to where you live for the majority of the time.
The EU Council Regulation covering the issue of jurisdiction on divorce came into effect on 01 March 2001. Article 2 sets out a multiple choice of factors for the court to consider. None of these factors are any more important that the other. They are:
- Both spouses' habitual residence, i.e. both spouses live in England/Wales;
- The last habitual residence of both spouses, one spouse still being habitually resident in England/Wales;
- The Respondent spouse's habitual residence;
- The Petitioner's habitual residence for 12 months in England/Wales immediately before the Divorce Petition is issued;
- The Petitioner's habitual residence for 6 months in England/Wales immediately before the Divorce Petition is issued coupled with domicile;
- The nationality of both spouses or their domicile.
It is worth noting that even if you and your ex spouse have been granted a foreign divorce, if you have strong links with England it may be possible for the English courts to deal with financial matters arising from your divorce. At Linnitts we have very successful experience in acting for clients who pursue a financial settlement through the English courts following a foreign divorce.
Why divorce through the English Courts?
Using the English legal system is often much quicker an, cheaper than using courts in other jursdictions. Additionally, the English courts often award more generous financial settlements.
Deciding where to divorce
Because it can be beneficial to use the English legal system to process your divorce you should always take advice on whether you are eligible to divorce under UK law. If your circumstances are at all complicated, for example you married abroad, either party is not a UK citizen, you live or are domiciled in different countries, there are complicated rules which apply some, due to European law and your circumstances may need to be explored in some detail.
Limitations of the English Courts
There are some limitations on what can be agreed and arranged through the English court system. Any foreign owned property for example is not under the jurisdiction of the English courts so for example the judge cannot make orders in respect of overseas assets, unless the other party is in agreement. However, this is often dealt with by way of undertakings, i.e. formal promises to the Court to transfer money/property abroad. An alternative way of dealing with this issue is for foreign assets to be offset against assets based in this jurisdiction within a divorce settlement. This method means that there are no enforcement difficulties as the other party will retain the foreign assets.
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