There are various reasons why more and more people are moving from the UK to live and work overseas, not least because it can have great benefits in terms of finance and everyday lifestyle. However, one element of this process that people often overlook is the complications introduced by living in a different legal jurisdiction. Naturally this is not always a high priority when it comes to justifying a move abroad, but it does add complexity to various legal situations, and one of those is the divorce process.
A UK citizen who lives and works outside of the UK, either temporarily or permanently can file for divorce through the courts system of England and Wales.
They can choose from a number of legal jurisdictions in which to process their divorce, but it is important they consider this carefully as the overall financial settlement can be considerably different, depending on where they choose to process the divorce.
What are the requirements for an ex-pat to process a divorce in England and Wales?
As long as one of the following applies, an ex-pat can file for divorce in England and Wales:
- Both parties are habitually resident in England and Wales.
- Both parties were habitually resident in England and Wales at one stage, and one of them continues to reside there.
- The respondent is habitually resident in England and Wales.
- The applicant is habitually resident in England and Wales and has resided there for a minimum of one year immediately prior to the application being made.
- The applicant is domiciled and habitually resident in England and Wales and has resided there for a minimum of six months immediately prior to the application being made.
- Either or both parties are domiciled in England and Wales.
These conditions ensure that a divorcing couple have sufficient connection to England and Wales and are granted the right to divorce there, even if they don’t currently live there. The first part of the divorce process for an ex-pat is to establish whether one of these conditions applies.
What is the difference between ‘domicile’ and ‘habitual resident’?
In legal terms these two phrases have very different meanings, and in the context of an ex-pat divorce it is important that these are understood.
- Domicile – This is the country and legal system that you are primarily linked to and, is most commonly your country of birth.
- Habitual residency – This describes where a person is living and which they would describe as their settled home.
An ex-pat could therefore be domiciled in England and Wales, but have a habitual residence overseas. This would still qualify them to apply for a divorce using the England and Wales system.
What to consider if you are an ex-pat wanting to divorce in the UK
The first consideration is that some UK countries, specifically Scotland, have different divorce laws to England and Wales. In the interests of simplicity, we are referring to ‘England and Wales’ rather than the ‘UK’.
- Other jurisdictions – An ex-pat living overseas can also apply for divorce in the country they are currently living in, or where their spouse is living. But you should be aware that different countries have different divorce laws and processes, making it essential that you get professional legal advice on international divorce, to help you decide the best place to apply for divorce.
- Marital assets – These are the assets accumulated during the marriage which can include property, investments, savings and businesses. Where these are located will have a bearing on where the divorce application should be made.
- Children from the marriage – The family court of the country where children of the marriage are living will determine where they live after the divorce. If the parents are living in different countries, it is unlikely that a court will rule that children should move to another country. Nevertheless, this is a complex area of the law and requires specialist legal advice.
- Experienced international solicitors – It is important that you select a solicitor with specialist experience in the international jurisdiction you are dealing with. This requires language and communication skills, but also a strong knowledge of the law and local legal customs.
- Practical issues – If you are dealing with international solicitors, think about time differences and factor this in when attempting to meet deadlines. You also need to think about how you will communicate with overseas solicitors, how you can attend meetings and how you can securely send documents which might be sensitive or confidential.
What is the divorce process for a UK ex-pat?
There can be a number of reasons why you want to apply for a divorce in a specific country as a UK ex-pat, but this should only be decided upon based on specialist legal advice which takes into account your personal circumstances and the specific divorce laws of the country in question. A UK ex-pat considering divorce should:
- Legal advice – Take specialist legal advice from an experienced international solicitor and establish the best country in which to apply for divorce.
- Finances and assets – Get your marital assets and finances in order so they are easy to understand. This may still be a complex issue depending on the legal jurisdiction you end up involved in, but you have to declare all these assets anyway, and it provides a solicitor with a better idea of what they are dealing with.
- Children – Always prioritise the best interests of children in terms of where you will live and what will happen after the divorce. Living overseas is already a major upheaval for them, but courts are likely to decide this is where they are best suited to living post-divorce, if they already do, so you need to plan towards that from an early stage.
- The divorce process – If you decide to apply for a divorce in England and Wales, and you qualify as an ex-pat to do so, you can apply for a no-fault divorce either jointly, or individually. There follows a 20-week waiting period in which the courts allow you to make financial and child arrangements, and to confirm that a divorce is definitely the right course of action. This is followed by applying for a conditional order (formerly a decree nisi) followed by a final order (formerly a decree absolute) around six weeks later.
If you are an ex-pat living overseas, or your partner still lives overseas and you live in the UK, and you wish to apply for a divorce, our team of experienced family law solicitors can speak to you and advise on different legal jurisdictions and help you decide on the best place to apply for a divorce. So get in touch with our team today.