Outline of the legal requirements if you did not marry in the jurisdiction
You may have read in the news of many wealthy international divorces occurring in England, such as the divorce of the Dubai ruler, Sheikh Mohammed bin Rashid Al Maktoum, believed to be one of the largest in the history of UK divorces. The popularity of England and Wales for international divorce is due to the many benefits it can afford in comparison to other countries. Judges tend to have much greater discretion in England and Wales in respect of associated Financial Remedy proceedings, and our starting point of equality is not always matched in other jurisdictions.
If you did not marry in England or Wales, or if you or your spouse do not currently live in England or Wales, you may be wondering if you would be able to obtain a divorce here.
To be allowed to divorce in England or Wales, you must meet certain criteria and the courts must have what is known as ‘jurisdiction’ to act. This simply means that the courts have the power to determine your divorce. If you meet the legal requirements then you can proceed to apply for a divorce in England or Wales, even if you do not presently reside here or did not marry here. It is important to note that some people may have an option of divorcing in more than one country. If so, then taking early legal advice can help you determine which will be the best option for your circumstances.
What are the legal requirements?
There are a number of criteria that you must meet to be permitted a divorce in England and Wales, namely:
- You have been married for at least one year. If you try to divorce before one year of marriage, the courts will refuse your application.
- Your marriage has broken down irretrievably. This means that you are satisfied there are no prospects of a reconciliation. You may wish to attempt couples counselling before coming to this decision. Most people will be required to have at least attempted mediation before they are allowed to obtain their divorce. There are some exceptions to this rule, and one of our lawyers can advise you in relation to same.
- Your marriage is legally recognised in England and Wales. It does not matter where in the world you married, provided your marriage is recognised as legitimate in England and Wales. This can sometimes be a complex question and if you are in doubt, it is crucial that you obtain expert legal advice, as the implications can be wide reaching if your marriage is deemed to be unrecognised in the UK. Generally speaking, to be recognised the marriage must have been legal in the country in which it took place, both spouses must have had capacity to enter the marriage, and any previous marriages must have been terminated properly prior to the marriage. This can impact some religious ceremonies that occur, typically within the UK. For example, if you are Muslim and get married under Sharia Law within the UK, it will not be legally recognised in England and Wales. It is worth noting that if your marriage certificate is not in English, a certified translation will be needed for the courts.
- Jurisdiction is established. There are five ways in which this can be proven, namely: both spouses are habitually resident in England or Wales;
- both spouses are habitually resident in England or Wales;
- your spouse is habitually resident in England or Wales;
- both spouses are domiciled in England or Wales;
- you are habitually resident in England or Wales and have lived here for at least a year; or
- you are domiciled and habitually resident in England or Wales and have lived here for at least six months.
What if I have lived abroad?
If you have lived abroad, or are currently living abroad, then you will need to be able to establish jurisdiction in England or Wales to apply for a divorce here. If your spouse resides in England or Wales then the jurisdiction test will be met. If neither you or your spouse reside in England or Wales then you must establish that you are both domiciled there.
‘Domicile’ is not legally defined in statute but it is taken to mean the country where you have your closest ties, such as where your permanent home is, your legal affairs and tax affairs. If you are unsure, then it is important to seek legal advice.
What if my spouse wishes to apply for divorce in another country?
For couples with an international lifestyle, you may be entitled to issue divorce proceedings in more than one country.
If your spouse beats you to it and applies for a divorce first in another country, then you will lose your opportunity to issue in England or Wales.
This could be costly for you, so it is important not to delay. If you have a choice of countries within which you can issue your divorce then it is critical to obtain early advice from an experienced family lawyer. In respect of associated Financial Remedy proceedings, it may be necessary to seek advice from a lawyer who practices in the other country, in order to determine which country would be better for you to issue proceedings in.
How we can help
One of our family law experts will be able to advise you on the options available to you and what type of financial court orders you could seek. We can weigh up the routes available to you, considering not only the financial impact but also the court orders available in relation to where any children of the family will live, and how orders could be enforced in other countries.
If you are contemplating divorce, or just want some preliminary advice on your options and if you are entitled to issue proceedings in England or Wales, please contact Hannah Byatt in the family law team on 01480 702207 or email [email protected].
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