Can I divorce get divorced in a different country to where I married or where I live?
Yes. Contrary to popular belief, it is not necessary to divorce in the country where you originally married. You can do so of course – but if you live elsewhere by the time your marriage begins to break down, you can usually also apply for divorce where you reside. You will normally be required to show that you have a significant connection to the country in which you currently live and are not just ‘passing through’.
Couples who married abroad can apply for divorce within the jurisdiction of England and Wales if:
- They have been married for at least a year.
- Their relationship has permanently broken down.
- Their marriage is recognised as legally valid under English law.
- The UK is the permanent home of either spouse.
The latter two factors are used to demonstrate that the English courts are the forum conveniens – the correct or convenient forum for the divorce, even though the couple married abroad.
The country in which a person normally lives is referred to by lawyers as their ‘habitual residence’, but the meaning of that term, like the related concept of ‘domicile’, can be different under different parts of the law.
Does English law recognise foreign marriages?
Yes. Clearly, in order for divorce to be possible, the original marriage in another country must be legally recognised. English law, like that in most jurisdictions, applies a set of relatively simple criteria to foreign marriages. They must:
- Have taken a format recognised by the law of the country where the marriage took place.
- Have been legally permitted within that country – meaning, there were no restrictions on the ability of one spouse to marry (if for example, they were already married).
Finally, both spouses must have had the ‘capacity’ to get married. Capacity is a legal term meaning the understanding required for a person to make significant decisions about their own life or welfare.
Some countries allow polygamous or polyandrous marriages – meaning a person can have more than one spouse. Generally-speaking, if a person is married and UK-based, then they are not permitted to add spouses to that marriage, even if local custom in their home countries might permit it.
Which is the best country to divorce in?
The world is a lot smaller than it used to be. International travel is commonplace and many couples move to different countries after tying the knot to pursue opportunities, take jobs or just catch a little extra sunshine. As we saw above, in many cases it is possible to divorce in the new country: but should you do so? Is it in your best interests? This is a complicated question which can have as significant impact on the couple’s eventual financial settlement (the agreed division of money and assets), as well as the decisions made about other financial matters, such as maintenance payments.
Some jurisdictions are considered more favourable to financially dependent wives – for example, English law – while others are regarded as more advantageous to husbands.
As you might expect, this often leads to estranged spouses competing to file an application for divorce in the courts of the country they see as most advantageous to them. As we saw above, within the UK the principal of forum conveniens is applied to establish the correct jurisdiction. As long as one spouse can demonstrate that they have a meaningful connection to Britain, the divorce is normally allowed to proceed.
The EU, by contrast, applies a high pressure ‘first past the post’ system, in which the courts of the first country to receive an application are considered the appropriate venue for the divorce proceedings.
Which jurisdictions are available, and which are most likely to apply legal principles that favour one person or the other, both usually depend on the circumstances of each case. So do take expert legal advice before making any decision. The information in this blog is not intended as a substitute for legal advice.
Lawyers are usually only regulated to give advice within the jurisdiction for which they are qualified, so they are not ‘dodging the issue’ if they suggest that clients take advice from lawyers qualified in the other jurisdictions that might apply.
Divorce is not restricted to the country in which people were married and the principles applied to legal matters resulting from the marriage differ from country to country and even within countries such as the USA. There is no substitute for proper legal advice before decisions about filing for divorce are made.