It is common for couples to have an international aspect to their relationship. There are often a number of reasons which could give rise to an international divorce; if one or both spouses are not originally from England or Wales, then there is a good chance that the wedding will take place elsewhere. For others, their dream wedding might involve being somewhere hot and barefoot on a beach surrounded by palm trees, which is not something a traditional English wedding can deliver. Whatever the reasons to marry abroad, there are a number of points to consider from the outset. I have compiled this Q&A to hopefully provide some clarity on those points.
Sadly, many people’s plans to get married and travel abroad have had to be shelved this year. Therefore, for the purposes of this blog, I will need you to imagine a pre-coronavirus world, where not only could you have your dream wedding, but you could have it take place in an exotic overseas destination.
CAN I GET DIVORCED IN ENGLAND AND WALES IF I GOT MARRIED ABROAD?
In most cases, you will be able to start divorce proceedings in England and Wales provided that you have a valid marriage certificate (and certified translation, if the marriage certificate is not written in English).
It is possible to start proceedings in England and Wales provided that:
- You have a valid marriage certificate. In many cases where the marriage took place abroad, the marriage certificate will not be in English. In which case, you will need to obtain a certified translation of the marriage certificate, which must accompany the divorce petition when it is ultimately sent to the Court to be issued.
- The marriage was lawful in the country where the ceremony took place.
If the marriage did not take place lawfully in the country where the ceremony took place (e.g. because it did not comply with that country’s local customs in relation to wedding ceremonies) then there won’t be a lawful marriage. Where there is no lawful marriage, there can be no divorce.
The key issue is determining whether the marriage was lawful in the country within which the ceremony took place, with the local custom being observed. This may mean that you needed a specific number of witnesses to the marriage ceremony. Or the ceremony itself may have required participation in a religious ceremony as well as a civil ceremony. If the marriage has been carried out in accordance with the local customs, it is usually a lawful marriage.
CAN I GET A DIVORCE IF MY SPOUSE LIVES IN ANOTHER COUNTRY?
Yes. In circumstances where your spouse is abroad, but you are still living in England, you can start proceedings in England.
Pursuant to Article 3 Brussels II, the English Court has jurisdiction to deal with a divorce on the basis that one of the following applies:
- Both you and your spouse are habitually resident in England and Wales;
- Both you and your spouse were last habitually resident in England and Wales, and one of you still resides here;
- Your spouse is habitually resident in England and Wales;
- You are habitually resident in England and Wales and have resided here for a year;
- You are habitually resident in England and Wales and have resided here for 6 months and you are also domiciled in England and Wales;
- Both you and your spouse are domiciled in England and Wales.
DOMICILE VS RESIDENCE
To establish habitual residence, you need to show that you have a right to reside in that country and intend to make it your home for the time being. Domicile is a much more permanent concept than residence. You will have a domicile of origin, which is usually the domicile of your father at the time of your birth, or the domicile of your mother if your parents were unmarried. To gain a new domicile, you have to show that you intend to live permanently in the new country and you do not intend to return to live in your domicile of origin. This is a complex issue however and expert, detailed advice should be taken.
ARE THERE ADVANTAGES IF I CHOOSE TO DIVORCE ABROAD?
Depending on what other jurisdiction is available to you, it may be more advantageous financially to divorce in another country.
The media often reports that England is the “divorce capital of the world.” This phrase has been coined following a number of significant financial settlements in favour of spouses who have specifically chosen to seek divorce settlements in this country. In comparison to other jurisdictions, the English Court emphasises equality in financial settlements in circumstances where there is a surplus of assets to meet the parties’ housing needs. Thus, whether this is beneficial to you will depend on whether you are likely to be the paying or receiving party.
A good first step is to attend an initial meeting to take advice on how the English Court is likely to deal with your dividing your assets. You can then compare this with the financial remedy provision available in any other country which has jurisdiction to deal with your divorce.
IF I GET MARRIED IN A DIFFERENT COUNTRY, WILL MY MARRIAGE STILL BE RECOGNISED IN ENGLAND?
Usually yes, provided that you have complied with the requirements of a lawful marriage ceremony in the destination country.
If your marriage certificate is not in English and you intend to divorce in this country, you will need to obtain a certified translation to send to the Court. Your solicitor can arrange this for you.
WHERE SHOULD THE DIVORCE TAKE PLACE IF I WAS MARRIED ABROAD?
This will depend entirely on the facts of your case. It is often helpful to consider what the most important factors are to you, which can include:
- Ease and speed of the process;
- How the Court will approach the financial settlement;
- Where a pre-nuptial agreement has been drawn up and whether it will be upheld
- How the Court will approach arrangements for the children.
At Rayden Solicitors, we are more than happy to meet with you to give you tailored advice on how the Courts of England and Wales are likely to deal with your international divorce and discuss the advantages or disadvantages of pursuing an international divorce and financial settlement.
If you would like to talk to a specialist family law solicitor about any of the issues raised in this blog, please contact us.