The number of British nationals living abroad has increased by approximately 30% in the last three decades and are now estimated to number in the region of 5 million. With the number of expats increasing, the number of British nationals living abroad looking to divorce their spouse is also on the up. But when can expats get divorced in the UK?
The UK is made up of three separate jurisdictions: England and Wales, Scotland and Northern Ireland. Each have their own laws surrounding divorce and the division of finances. Scotland particularly has a notably different approach to separation to England and Wales and Northern Ireland, which are closely aligned. However, all three jurisdictions apply the same test to whether a British national can begin divorce proceedings within the jurisdiction. The courts will allow a divorce petition to proceed where:
– the spouses are habitually resident within the jurisdiction;
– the spouses were last habitually resident within the jurisdiction, insofar as one of them still resides there;
– the respondent is habitually resident in the jurisdiction;
– the applicant is habitually resident in the jurisdiction and he or she resided there for at least a year immediately before the divorce petition was filed;
– the applicant is habitually resident in the jurisdiction and he or she resided there for at least six months immediately before the application was made and has his or her “domicile” there; or
– both spouses are domiciled within the jurisdiction.
Habitual residence and domicile are legal concepts but, very loosely, habitual residence is where you live and domicile is where someone views are their long term home.
In the case of an expat divorce, habitual residence is unlikely to available, assuming that the spouses are both living abroad. Their habitual residence is likely to be the country in which they are living. If both spouses are British nationals, then they have the ability to bring proceedings in their home jurisdiction (England and Wales, Scotland or Northern Ireland).
Where only one party is a British national, they might still be able to bring proceedings in the UK, provided that they are not living in another EU member state. This is referred to as the residual jurisdiction. However, caution should be taken before filing a divorce petition based on residual jurisdiction as, when this ground is relied upon, the courts are unable to grant any maintenance awards.
Does it matter which country you get divorced in?
In short, yes. It can matter significantly. Each country has their own rules about how to divide up the assets upon a divorce and these vary significantly. The country which hears the divorce proceedings is the country which will determine how to divide the finances.
Not only this, but the practicalities of going through a divorce in another country, potentially in another language, can be daunting.
It should also be noted that there can be multiple countries in which expats are legitimately able to file divorce proceedings. It is not uncommon for spouses to file a divorce petition in different countries. Which country will hear the proceedings will, as things stand, depend on whether the other country is a EU member state or not. Where the other country is an EU member state the country in which the divorce petition was filed first will be the country where the proceedings are heard. Therefore time is of the essence. Where the other country is not an EU member state, the country which the parties have the strongest ties to will generally hear the proceedings.
It should also be noted that the way in which Britain leaves the EU will have an impact on these rules. If you are an expat considering bringing divorce proceedings it would be sensible to obtain advice as soon as possible.