Expat Divorce: What you need to know

The prospect of divorce can seem very daunting for those living abroad, and is sometimes referred to as “expat divorce”.  Even if you are fluent in the language of your adopted country, the thought of potentially having to navigate a foreign legal system can seem challenging, to say the least.

Couple this with the financial worries that often come hand-in-hand with the divorce process and it can be easy to feel overwhelmed.  These are some of the reasons why many expats decide to research whether they may be able to get a divorce in their “home” nation.

Here at Austin Kemp, our experienced solicitors regularly deal with divorces with an international element. For example, as well as British expats, we often hear from non-British nationals with some sort of UK connection, who want to know if they would be able to divorce here.

Expat divorce in England and Wales

Firstly, it’s important to distinguish between English and Welsh law and the legal systems in Scotland and Northern Ireland.  Our specialist solicitors at Austin Kemp are experienced in the legal system of England and Wales, so advise people who are English or Welsh expats or who may have a sufficient connection to England and Wales so as to be able to divorce here.

If you are a Scottish or Northern Irish expat and wish to divorce in either of these legal systems, you may need to seek legal advice from a solicitor who specialises in these countries.

Why are expat divorces so popular?

Due to a variety of factors, moving abroad has become increasingly common in recent times. This has meant that more and more divorces have some kind of international element and some people find that they may even be eligible to divorce in more than one country.  As well as the obvious draw of a familiar language and legal system, there are various other reasons why British expats may opt to divorce in the UK over anywhere else.

In recent times, London has gained the reputation of the ‘divorce capital’ of the world. Indeed, the English and Welsh courts have become notable worldwide for awarding more favourable settlements to the “financially weaker” spouse. English and Welsh judges are known for seeing the mainly non-financial contribution of the homemaker and the financial contribution of the main earner, as equally important.

This has meant that London has been referred to as a “favoured location” for spouses looking to divorce their rich other halves. Just a few months ago, the Guardian reported that the wife of an oil and gas trader had been awarded £453 million in one of the UKs largest ever divorce settlements.  This figure reportedly comprised 41.5% of the total marital assets. The judge reportedly said: “I find that this figure is justified in all the circumstances.”

Another factor which may have a bearing on why the UK has the reputation of favouring the financially weaker party, is that prenuptial agreements are not legally binding in England and Wales. Often, it is the financially weaker partner who would sign a prenuptial agreement at the request of the wealthier party.

Although not legally binding, judges can (and do) take prenuptial agreements into account, if asked to make decisions regarding a financial settlement upon divorce. However, if a couple have been married for many years, a prenuptial agreement signed, for example, 30 years ago, may not be as relevant now due to changes in circumstances. A judge in England and Wales may be less likely to give this type of agreement a great deal of weight in their decision-making process.

Will I be able to divorce in England and Wales?

In essence, in order to divorce in the UK, you will need to show that you have a sufficient connection to the UK.

In order to get a divorce in the UK, you (or your spouse) will have to fall into a particular category. Either:

• Both you and your spouse are habitually resident in the UK
• The UK was the last habitual residence of you and your spouse and one of you is still living there
• The respondent is habitually resident in the UK
• The petitioner has lived in the UK for the 12 months just before starting the divorce proceedings
• The petitioner has lived in the UK for the 6 months just before starting the divorce proceedings and is domiciled there
• Both you and your spouse are domiciled in the UK.

There may also be some other limited circumstances where you could find that you may be able to divorce in England and Wales, if only you or your spouse is domiciled in there. It’s highly recommended that you seek legal advice about this if you are unsure or need more information.

Habitual residency: what does it mean?

There is no official definition of habitual residency. However, your habitual residency may be where you live and work, for example.

In order to determine whether or not you may be habitually resident in the UK, it can be helpful to look at a number of factors, such as:

• Do you own a property in the UK?
• Do you speak English?
• How long have you been in the UK?
• If you have any children, do they go to school here?
• Where do you work?

If you are unsure about where you may be habitually resident, it can be helpful to seek advice from a solicitor.

Often, expats are not habitually resident in the UK, as they are living and working abroad in another country. This means that domicile becomes the key issue for the majority of (but not all) expats looking to see if they are eligible to divorce in the UK.

What is domicile?

Domicile is a relatively complex area of law. Indeed, it can mean different things in different contexts.  Here, we will be looking at domicile with regards to which country you may be eligible to divorce in.  First, it is important to note that people can only have one domicile .  Your domicile is usually acquired at birth but can be changed in certain circumstances.  For example, moving to a different country and “cutting all ties” may change your domicile.

Some expats could leave the UK to move abroad but could remain domiciled in the UK under certain circumstances.  As always, it is highly recommended to seek advice from an experienced solicitor regarding whether you could be domiciled in the UK, as this is quite a complex area of law.

What if I am eligible to divorce in more than one country?

Some people find that more than one country has jurisdiction. In essence, this means that they may be eligible to divorce in more than one place.  When there is an international element in any divorce, it can make things more complex. In these circumstances, time is often of the essence.  In the UK, it usually makes no difference to the outcome of the divorce who is the petitioner (the person filing for divorce) and who is the respondent. However, this may not be the case in other countries.

Additionally, if you and your spouse were eligible to divorce in more than one country, it may be the country where the divorce petition is issued first that your divorce will go through in. Where in the world a divorce takes place may make a real difference to the outcome of your divorce.  For example, If divorce is filed for in different countries within the EU and both countries have jurisdiction, it is normally the case that the country where the petition is first issued, will be where the divorce goes ahead.

As we mentioned earlier, London has become known as the “divorce capital” of the world, due to the courts’ favouring the financially weaker party.  Of course, for the richer spouse, London may be the last place they want to divorce.  Other countries may not take such a “favourable” view and may award what some would argue is a much less generous settlement, to the financially weaker spouse.

As one would expect, this has resulted in what has become known as a ‘petition race’ or ‘jurisdiction race’, with divorcing spouses ‘racing’ to get their divorce petition filed in a country that could see a more beneficial result for them financially.

When should I seek advice from a solicitor?

Making the decision to get a divorce can be extremely emotional. Often, people don’t want to seek advice from a solicitor until they are 100% sure that their marriage is over. However, if there may be an international element to your divorce, time could be of the essence.

If your spouse files for divorce in a different country before you can file for divorce in the UK, you may no longer have a choice about where your divorce goes through and your financial settlement could look very different to how you originally may have expected.

If you think that you or your spouse could be eligible to divorce in more than one jurisdiction, or even if you are unsure, it is highly recommended that you seek legal advice from a solicitor who is experienced in expat divorce and understands all of the complexities this can bring with it. If you find that you may be eligible to divorce in more than one jurisdiction, it may also be helpful to seek advice from solicitors in each particular jurisdiction before you make your decision about where to divorce.

However, it is worth mentioning again that, as time may be of the essence when it comes to expat divorce, it may be important to seek legal advice from an experienced solicitor as soon as possible.

How long will an expat divorce take?

As expert divorce solicitors, we are often asked how long the divorce process takes.  It’s no secret that getting a divorce can sometimes be a lengthy and time-consuming process.

The length of the divorce process does vary significantly, due to a number of different factors. For example, a couple with relatively little in the way of assets, who reach an agreement about how these assets will be split relatively quickly, may find that their divorce is finalised in around only 4 months.

However, high net worth individuals with international assets, could find that the process takes much longer, as complex negotiations often need to take place to decide how these assets will be split. Also, it may take a great deal of time if an agreement cannot be reached about the financial settlement and the couple have to ask a court to decide.

Although the financial side of a divorce is very separate to the divorce process itself, it normally runs side by side with it. As a very rough estimate, we tell our clients to expect a divorce to take around 4 to 6 months. The divorce process can take much longer than this, depending on your individual circumstances.

Do I need to come back to the UK to get a divorce? 

The majority of our expat clients will not have to come back to the UK to get a divorce here. Everything can usually be done remotely, as you would normally not have to attend court yourself.  An experienced solicitor can usually manage the divorce process for you, so that you can get on with your life abroad without coming back to the UK.

However, there are instances when you may be required to travel back to the UK. If you are worried about this, speak to us for more information.

How long do I need to wait to get an expat divorce?

You will need to have been married for at least one year in order to apply to divorce in England and Wales.  However, if you believe that your marriage is over before the one year time period is up, there is nothing legally stopping you from seeking advice from a solicitor early on.

Additionally, there are some situations where your marriage could be annulled. Speak to an experienced solicitor for more information.

26th September 2017