Following on from my blog setting out the differences between a divorce in England and the Republic of Ireland, I will address the primary differences between a divorce in England and Northern Ireland. This is a slightly different dynamic as both form part of the United Kingdom. In this blog, a divorce arising from a marriage, or a dissolution of a civil partnership are interchangeable terms; equally, there is no distinction as to whether the marriage / civil partnership is same or opposite sex.
It’s all the UK – isn’t it the same thing?
Not quite. The process for divorce is different across the three legal jurisdictions forming part of the United Kingdom [(i) England & Wales (ii) Northern Ireland (iii) Scotland]. Here, I will focus on the differences between divorce in England (and Wales) as to that in Northern Ireland.
What is the process for divorce in England?
A divorce in England can only be started after you have been married for one year and there is only one ground for divorce, you must show the Court that your marriage has “irretrievably broken down”. The Court will accept a statement of irretrievable breakdown by one party to the marriage as conclusive evidence that the marriage has broken down irretrievably. Therefore, divorces take place on a no-fault basis.
The divorce application can be made jointly by both parties to the marriage or as a sole application by just one party.
The scope to defend a divorce has now been removed in all cases save where there is a jurisdictional issue and a few other rare exceptions. Therefore, the vast majority of divorces cannot be defended. Costs orders (for one party to pay the other’s costs) will also be rare.
Neither party need attend Court as part of a divorce; matters are dealt with administratively. A divorce should take approximately six months from start to finish. This may take longer if the division of the matrimonial finances remain unresolved which may cause a delay although it is not compulsory to have a financial order alongside the divorce. Similarly, a divorce in England will not address children matters; any dispute in relation to the children will be addressed independently of the divorce proceedings.
What is the process for divorcing in Northern Ireland?
A divorce in Northern Ireland differs; if anything, it is relatively similar to the regime that was previously in place in England. A divorce in Northern Ireland can only be started after you have been married for two years and there is only one ground for divorce, you must show the Court that your marriage has “irretrievably broken down”. This can be evidenced in the following ways:
(i) The parties have been separated for the preceding two years and both consent to the divorce.
(ii) The parties have been separated for the preceding five years. The consent of both parties is not required here.
(iii) Unreasonable behaviour.
(iv) Adultery.
(v) Desertion.
It is noteworthy that a no-fault divorce can only take place if the parties have been separated for at least two years.
The divorce petition can only be filed if there is no reasonable prospect of reconciliation. One spouse must be the petitioner; the other party is the respondent. There is no ability to file a joint petition. The petitioner will be required to attend a hearing to have the decree nisi issued. Costs orders can be made. The process can be completed within 5 months. Similar to England, there may be a delay if the division of the matrimonial finances remains unresolved although it is not compulsory to have a financial order alongside the divorce.
A key difference in Northern Ireland is that if there are children of the marriage, the parties must complete a Statement of Arrangements for Children Form. The Court may consider not finalising the divorce if children matters are not agreed.
What are the jurisdictional requirements to divorce in England?
There are different jurisdictional requirements in which to divorce in England but all of them fall back on one or both parties being either habitually resident or domiciled in England. My previous blog provides some further information on the meaning of these terms. Some divorces will require an additional period of residence in England of six or twelve months immediately prior to the issue of proceedings.
This can allow scenarios where a spouse who is living in Northern Ireland but who is domiciled in England, or more unusually who remains habitually resident in England, to issue divorce proceedings in England. You could also rely upon the fact your spouse is domiciled or habitually resident in England to issue divorce proceedings in England even if you are living in Northern Ireland.
What are the jurisdictional requirements to divorce in the Northern Ireland?
The jurisdictional basis for divorce in Northern Ireland is very similar to that in England. Domicile or habitual residence must be established. A recent period of residence in Northern Ireland is sometimes required.
I can issue in England or Northern Ireland – which is better?
The jurisdictional requirements for both England and Northern Ireland can create a form of “forum shopping” for a divorcing spouse as to which jurisdiction is their preference in which to commence proceedings. Petitioners will consider which jurisdiction will provide a divorce more quickly; however, an ancillary financial settlement and the differences as to how each jurisdiction addresses the division of matrimonial finances will often be the most important issue to consider when deciding upon jurisdiction. I will highlight these differences in a forthcoming blog.
Due to Brexit, England and Northern Ireland are no longer subject to EU law meaning the jurisdiction ‘first seized” of a divorce (and thus holding jurisdiction over that divorce) no longer applies. However, it remains an important first step and you should not delay if there is a risk that proceedings may be issued in the less favourable jurisdiction. What amounts to the more favourable jurisdiction is a subjective test based upon the circumstances of the marriage and what one wants to be achieved; it will require specialist legal advice from a solicitor before proceeding to issue.
Do England and Northern Ireland mutually recognise each other’s divorces?
In short, yes. As two jurisdictions within the United Kingdom, domestic legislation will recognise a divorce from the other.
If you would like to discuss any of the issues raised in this blog, please do not hesitate to contact us.
