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Divorces with an international element

It is very common for estranged spouses to have international connections; whether it be because they have dual citizenships, assets abroad, or live or intend to live in a different country.

Where any of these scenarios apply, it is sensible to seek legal advice as soon as possible.  A common question that arises concerns the most appropriate jurisdiction in which to issue divorce proceedings. It is sometimes necessary to consult with lawyers in more than one jurisdiction in order to understand the most advantageous and/or convenient forum.

If applying in England and Wales, there are two criteria that courts will consider:

1. Habitual residence

In order to claim ‘habitual residence’ in England or Wales, you must prove that your centre of interest lies within the jurisdiction. This means demonstrating that you live here and you have sufficient links to the community (for example, if you have children attending school). Although the term does not have a set definition, your habitual residence would usually be where you have your roots and where you spend most of your time.

2. Domicile

There are two different types of domicile:

  1. Domicile of origin is the country in which a spouse’s father was born; and
  2. Domicile of choice is the country which you have permanently moved to after severing your ties with your domicile of origin.

You can apply for a divorce in England and Wales if you satisfy one or more of the following:

  1. both parties to the marriage are habitually resident in England and Wales;
  2. both parties to the marriage habitually resident in England and Wales and one of them continues to reside there;
  3. the respondent is habitually resident in England and Wales;
  4. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  5. the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  6. both parties to the marriage are domiciled in England and Wales; or
  7. either of the parties to the marriage is domiciled in England and Wales.

There are very strict rules around how jurisdiction is seised and time can be of the essence. If you find yourself in a position where there are international elements, you should keep the following in mind.

1. Ensure you have your marriage certificate

This is required to start divorce proceedings in England and Wales as a copy of the original document needs to be filed at Court when making the application.

2. Take advice

As mentioned above, you will often need to seek independent legal advice in any relevant jurisdiction. This will enable you to make an informed decision as to where you can get the best possible outcome in the most time and costs efficient way.

3. Be on your guard

You should be careful what you discuss with your spouse as this may tip them off and enable them to seise jurisdiction first, in the place that is most favourable to them.

4. Act promptly

Do keep in mind that your spouse will have been advised to do the same if they sought legal advice. Your spouse may have already started proceedings without telling you.  This is why time is of the essence.

The law in England and Wales is generally more favourable to the spouse who has been looking after the family, especially if the marriage is a long one and has resulted in children. It is important to evaluate where you can get the most favourable financial settlement to ensure your needs (and the children’s, if applicable) are met.

Another factor to take into consideration is the likely length of proceedings. England and Wales is one of the more efficient jurisdictions to get divorced in: proceedings can conclude within as little as six months if dealt with in a straightforward way.  Another benefit is that you do not need to apply for a before being able to apply for a divorce, as it is the case in jurisdictions such as Ireland and Italy.

We have connections with lawyers qualified and practising abroad, so we are normally able to refer you to competent lawyers, depending on the jurisdiction you need to get advice in.

Should any of the issues raised in this article apply to you, we would be happy to arrange an initial consultation and promptly advise on the steps that need to be taken to deal with your matter in the most efficient way.

How to instruct us

The first step is to attend a preliminary consultation.  At the consultation we will advise you on practical and legal issues and set out your options.  The consultation will help you understand your position and allow you to make an informed decision about what action to take.

Consultations take place in our London offices or by Zoom/Teams/telephone.

To request a consultation please send us an emailcomplete our online enquiry form or call us on 020 3393 6852.  If emailing or using the online form, please provide a short outline of your situation.

Details of the cost of a consultation will be provided following your enquiry.






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