It is common for couples to have an international aspect to their relationship. Whether it’s getting married abroad or working in different jurisdictions, there are often a number of reasons which could give rise to an international divorce.
Here, Kayleigh Biswas answers some frequently asked questions about international divorce.
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).
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 husband or wife is out of the 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.
To establish habitual residence, you need to show that you have a right to reside in that country and intention 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 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 international divorce take place?
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 divorce and discuss the advantages or disadvantages of pursuing an international divorce and financial settlement.