A marriage coming to an end can be a particularly distressing time, especially if one spouse is having difficulty coming to terms with the breakdown of the relationship.
Seeking expert legal advice as soon as possible after realising a relationship is drawing to a close, is often the last thing on many people’s minds. However, if you may be eligible to divorce in more than one country, acting as quickly as possible could make a real difference to the outcome of your divorce.
Over the past few decades, it has become increasingly popular for people to move around the world and settle in different countries. This has meant that it has become more common for people to be eligible to divorce in more than one jurisdiction.
As experienced divorce solicitors based in the UK, we are often contacted by British expats wanting to know if they are able to divorce in the UK, or more specifically, England and Wales. English and Welsh divorce law (Scottish law is a separate system) is known worldwide for being much more generous than some other jurisdictions towards the ‘financially weaker’ party. Indeed, London has become known as the ‘divorce capital’ of the world for this very reason.
When thinking about where you may be eligible to divorce, it can be helpful to consider things such as where you and your spouse were born and where you both live now.
The rules regarding where you may be able to get a divorce are quite complex, so it is important to speak to an experienced solicitor about your particular circumstances. However, whether or not you may be permitted to file for divorce in England and Wales, largely depends on where you and your spouse are habitually resident and where you are domiciled.
In order to get a divorce in England, you would need a sufficient connection with England and Wales. For example, if you are habitually resident in England and Wales, you may be eligible to get a divorce here, even if you were married elsewhere.
In order to get a divorce in England and Wales, you (or your spouse) will have to fall into a particular category. Either:
There may also be some other limited circumstances where you could find that you could divorce in England and Wales, if only you or your spouse is domiciled in there. Speak to us for more information.
Where you are habitually resident would generally be wherever you live and work. This would normally be the country that you have made your home.
Domicile is quite a complex area of law and can mean different things in different situations and legal settings.
When it comes to looking at which country you could be eligible to divorce in, unlike habitual residency, you can only have one domicile . This is usually acquired at birth but could be changed by, for example, cutting all ties to your ‘home’ country and settling somewhere else, with the intention of never coming back.
Many expats find that they are still domiciled in England, so could be eligible to divorce through the English courts.
If you think 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 as soon as possible, from a solicitor experienced in international divorce law, in each potential jurisdiction.
This way, you can work towards making an informed decision about which country would be best to undertake your divorce in.
Get in touch with us to discuss your particular circumstances – our divorce solicitors are experienced in expat divorces and are happy to help if you are unsure as to whether you may be able to divorce in England.
Contrary to popular belief, expats who are living overseas can sometimes be eligible to divorce through the English courts, as long as certain criteria are met.
Here at Austin Kemp, we are experienced at conducting the divorce process for expats. There is usually no need to come back to England at any point in the divorce process, as normally, all elements can be handled remotely , enabling you to get on with your life abroad without the added stress and expense of coming back to the UK.
We are often asked by our clients if an expat divorce takes longer than a normal divorce. In most cases, the answer is no. The process is the same as the divorces we undertake for our clients who live in England.
How long a divorce takes usually depends on the complexity of your finances. Although the financial settlement is quite separate to the divorce process itself, it usually runs concurrently with it. We usually advise our clients that a divorce takes around 4 to 6 months, although for our high net worth clients, it can be substantially longer.
In recent times, it has become more and more common for families to move to different countries around the world.
Inevitably, this has resulted in what has become known as a ‘jurisdiction race’ or ‘petition race’, with divorcing spouses ‘racing’ to get their divorce petition filed in a country that could see a more beneficial result for them financially.
If divorce is filed for in different countries within the EU (not including Denmark) and both countries have jurisdiction, it is normally the case that the country where the first petition is issued, will be where the divorce goes ahead.
Divorce laws in different countries vary significantly. For example, English and Welsh courts are known to be more generous towards the financially weaker party, which still tends to be the wife. In other EU countries, such as France, this may not be the case. If both countries had jurisdiction, you can see why the financially stronger party may be keen to push through the divorce in France, rather than the UK, for example.
Additionally, some people believe the English courts to be cheaper than some of their foreign counterparts.
If you think you could be eligible to divorce in more than one country, it is important to seek legal advice from experienced family lawyers, such as Austin Kemp, as soon as possible. Acting quickly could make a real difference to the outcome of your financial settlement.
When a relationship breaks down, it can be difficult to come to terms with.
Dealing with legal issues is often the last thing on your mind, especially if you don’t really want the relationship to come to an end.
Here at Austin Kemp, we often talk to clients who have waited to see us until many weeks or months after separating from their spouse. Although whether you are the petitioner (the person who starts the divorce proceedings) or the respondent usually makes no different in English courts, this may not be the case in every country throughout the world.
We also see people whose spouse has begun divorce proceedings abroad. By the time these clients come to see us, it is often too late to begin proceedings in the UK, where the outcome could have been more favourable for them.
Sometimes, it is important to act quickly and seek legal advice, especially if you are an expat and aren’t sure which jurisdiction or jurisdictions you could be eligible to divorce in.
In some instances, it is whichever country that issues the divorce petition first, that the divorce ends up going through in.
If you think there may be international elements to your divorce, it is highly recommended that you speak to an experienced solicitor as soon as possible. Our solicitors are happy to advise clients at all stages of the divorce process, even if you are not yet sure that you want the divorce to go ahead.
Speak to us for more information.
You must have been married for at least one year in order to apply for a divorce.
Whether or not you can apply for a divorce in England and Wales, largely depends upon your habitual residence or domicile – take a look at our Expat Divorce page for more information. Our experienced divorce solicitors are happy to help if you want advice regarding your particular circumstances.
The divorce process itself is relatively simple, unless the respondent chooses to ‘defend’ the divorce. This is not very common but can be very complex. Speak to us for more information about this.
The financial settlement and what will happen to any children involved are separate from the divorce process itself, but are usually dealt with simultaneously.
The person who starts the divorce proceedings is known as the petitioner.
The person responding to the proceedings is called the respondent.
It is the petitioner who files the petition at court in order to begin the divorce proceedings. Your solicitor can also do this for you if you would prefer, or if it is inconvenient to get to an English court because you live abroad.
The petition gives information to the court about why you and your spouse are ending the marriage.
In this petition, you must show that there has been an ‘irretrievable breakdown’ of your marriage.
You can do this by giving evidence in order to prove one of five things:
1) Unreasonable behaviour
You’ll need to show the court that your spouse has behaved so badly that you cannot bear to live with them any longer.
In order to rely on adultery as to why your marriage has irretrievably broken down, you will need to show that your spouse has had sex with a member of the opposite sex and that, because of this, you can’t bear to live with them any longer. You may be unable to use this ground if you found out more than 6 months ago.
3) Separation for more than 2 years (with consent)
4) Separation for 5 years (without consent)
5) Your spouse has deserted you (this will need to be for two years or more)
In order to start the divorce process, the petitioner will file the petition at court. You will need your marriage certificate (or an official copy of your marriage certificate) in order to file the divorce petition.
It is normal practice for a copy of the divorce petition to be sent to the respondent at least a week before taking it to court to file it, so the respondent has a chance to look through its contents and take legal advice on it.
However, this is not always possible, especially if speed is of the essence and there are questions surrounding jurisdiction.
If you are in any doubt about any element of the divorce process, it is highly recommended to seek legal advice from solicitors who are experienced in divorces with international elements, such as Austin Kemp.
The next step is for the petition to be sent to the respondent (this is usually done by the court , but not always). They will then need to fill in a form saying whether or not they are going to defend the divorce, before sending it back to the court.
Normally, this is all the respondent has to do with regards to the divorce (there is usually more to do, however, with regards to children and finances), as the next parts of the process are undertaken by the petitioner (unless the respondent wishes to defend the divorce).
A decree nisi is a document from the court that confirms you are able to end your marriage through a divorce. However, your divorce is not final at this stage.
he respondent has been served with the petition. As long as the court is happy with all of your papers, then the decree nisi will then be pronounced in court.
However, if your spouse doesn’t agree to the divorce, then you may then need to go to court to argue your case where the judge will decide whether or not to grant a decree nisi.
You do not need to be there when the decree nisi is pronounced.
It is at any time after this point that you can ask the court to make an binding order regarding your financial settlement. Although separate from the divorce process itself, this is a very important element. Ask us for more information about this.
Some couples can come to an agreement about what their financial settlement will look like between themselves or with the help of solicitor-to-solicitor negotiations, for example, but others cannot come to an agreement and have to ask the courts to decide their settlement. This can often be the case with high net worth individuals with complex international assets and investments.
When the decree absolute is finalised, the marriage is officially brought to an end.
The petitioner must wait for at least 6 weeks and 1 day after the decree nisi is pronounced, before applying for the decree absolute. In reality, this can take much longer.
When may be the right time to apply for the decree absolute, depends on your circumstances. For example, applying for a decree absolute too soon, could impact upon the outcome of your financial settlement. Speak to us for more information about this.
The length of time from the petition to the decree absolute can vary, depending on your circumstances.
Often, divorces involving high net worth individuals with international assets, can take much longer, as complex negotiations need to take place to work out how to split these. As a very rough estimate, we tell our clients to expect a divorce to take around 4 to 6 months. However, it can take significantly longer than this.