09th Aug 2021

Should I Get Divorced in England & Wales or Abroad?

By Charlotte Symes

Should I Get Divorced in England & Wales or abroad?

Countries differ in the way their courts approach the legal issues which arise at the end of a relationship. The key questions are going to be:

  1. In which jurisdiction can each of us issue proceedings?
  2. In which jurisdiction are the courts likely to make an award more in your favour? This question is complex. It includes consideration of which law the foreign court will apply.  Although English courts only apply English law, some foreign courts will apply foreign law.  This question also requires a comparison between the remedies available in the different jurisdictions.
  3. To what extent would it be possible to defend the divorce proceedings in the unfavourable jurisdiction and if this were done, would it be effective to prevent a financial award being made?
  4. If there are simultaneous divorce proceedings, would either court make an order to hold up the process in the other jurisdiction and, if so, what factors would be considered?

Can I get divorced in England & Wales?

To be able to issue proceedings in England & Wales you will need to satisfy the following:

  1. You are both “habitually resident” in England & Wales;
  2. You were both last habitually resident in England & Wales and one of you still resides here;
  3. Your partner (the respondent to your application) is habitually resident in England & Wales;
  4. You (the applicant) are habitually resident in England & Wales and have resided here for at least a year immediately prior to the presentation of this petition;
  5. You are domiciled and habitually resident in England & Wales and have resided here for at least six months immediately prior to the presentation of the petition;
  6. Following Brexit, either of you are domiciled in England & Wales.  (This base of jurisdiction may give rise to potential implications for enforcement of any order made by the courts of England & Wales, abroad).

Can I get divorced in another country?

This will depend on your circumstances, the nature of your connection to the foreign country and the rules that apply in the court of that country. If the other country is an EU Member State then, broadly speaking, habitual residence will be highly relevant. There may also be jurisdiction if you are both nationals of the same EU member state country. Local advice is crucial.

For countries outside the EU, jurisdiction is determined by the application of the national law of each individual country, although habitual residence and nationality are often key.

Here is a practical example:

You take advice in Country 1 and are told that there is a possibility that as well as Country 1, the divorce could also take place in Country 2.  You will need advice from a lawyer in Country 2 to confirm:

(a)     whether Country 2 can deal with the divorce;

(b)     if so, whether a divorce is likely to be granted, how long it will take, and how much it will cost; and most importantly:

(c)     what sort of financial resolution is likely to be imposed, to include how long this would take and how much it would cost;

(d)     enforcement issues may also be relevant: getting an order in Country 2 may be of little use if the main asset(s) are in Country 1 and if it will be difficult implement the order of Country 2 in that jurisdiction; and

(e)        finally, you will find out whether your spouse is likely to be able to obtain an order to stop you from proceeding in Country 1.

What happens if me and my partner start divorce proceedings in the courts of different countries?

Unless you can agree which court should proceed, there could be competing jurisdictions.  To determine which court should deal with the matter, the courts in England & Wales apply the closest connection test.  This is known by its Latin name as forum conveniens (most convenient forum) but often expressed in the negative, forum non conveniens meaning that in the court’s discretion it is right to refuse a case because a court in another jurisdiction is better placed (there is a stronger connection) to deal with the dispute.

Under forum conveniens the court will consider a whole range of things focusing upon where the fairest court would be to manage this case, such as:

  • Where your assets are situated, with primary importance given to the former matrimonial home;
  • Whether the court can make orders that will be effective in relation to your assets (e.g. England will not recognise foreign-made orders sharing pensions);
  • the stage that has been reached in divorce proceedings in the competing jurisdiction and the involvement of any other country’s court;
  • any other ongoing proceedings (e.g. in relation to children or ownership of a property);
  • whether witnesses are needed and where they are located; and/or
  • your family’s connection with one country over another.

A foreign court may want to determine the question of jurisdiction, and this will be something that will form part of the advice provided by your foreign lawyer.  As well as applying some form of the forum non-conveniens test, some foreign courts may apply a first in time test, meaning that securing early legal advice in that country can be critical.  At FLiP we have a network of trusted family law specialists across the globe who can act quickly to help you to protect your position.

Charlotte Symes is a Director at Family Law in Partnership. Many of Charlotte’s matters have an international element.  Charlotte speaks fluent French and spent 18 months living in Paris working in French law firms. She has the expertise and experience to conduct client meetings in French. She advises on a wide range of family matters.

Contact Charlotte at T: +44 (0)20 7420 5000 or E: cs@flip.co.uk