Do you have to divorce in the country you were married?

It’s surprisingly common to encounter couples who married outside England and Wales. It may be that one or both of you has a connection to the country where the marriage took place, or perhaps you just decided to marry abroad. If your marriage breaks down, the question arises as to where you can get divorced. It’s important to remember that in England and Wales, the rules on international divorce apply if the marriage took place in Scotland or Northern Ireland, which have separate legal jurisdictions.

If you have a choice of jurisdictions in which to divorce, it’s only natural that you will want to consider which may provide you with the better outcome.

Is your marriage legally recognised?

Notwithstanding other requirements, it stands to reason that you can only get divorced in a country where your marriage is legally recognised. This is the case even if your marriage is valid in the country where it took place. For example, although same-sex marriage is currently legal in thirty one countries, a same-sex couple would not be able to divorce in a country where it remains illegal.

Domicile and habitual residence

Assuming your marriage is legally recognised in England and Wales, to divorce here, you will need to meet one of the following criteria:

• Both of you are habitually resident in England or Wales.
• The recipient of the divorce petition is habitually resident in England or Wales.
• The last place you were habitually resident as a couple was England or Wales, and one of you still lives there.
• You are habitually resident for at least twelve months in England or Wales.
• You are domiciled in England or Wales and have been habitually resident in either for six months.
• You are both domiciled in England or Wales.

But the definition of both ‘domicile’ and ‘habitual residence’ is far from straightforward. In essence, ‘habitual residence’ means the country where you spend most of your time and have put down the most roots. On the other hand, domicile is a more technical legal term.

There are two main types of domicile, but you can have only one at a time. Your ‘domicile of origin’ is the country where you were born, whereas your ‘domicile of choice’ is the country you have chosen as your permanent home. Factors important to determining domicile of choice, include (but are certainly not limited to):

• where you usually live, work or study;
• your nationality;
• where you own property;
• your postal address;
• where you are registered with a doctor;
• where you usually bank, pay tax, and have other financial dealings;
• where your mobile phone is registered.

Habitual Residence

Being habitually resident in England and Wales means being able to show you are already settled here or that you plan to remain for an extended period. Factors important to determining habitual residence might include:

• where you usually live, work or study;
• your nationality;
• where you own property;
• where you usually bank, pay tax, and have other financial dealings;
• whether your move here is temporary.

Comment

In all cases where there is an international element, the law can be complex. It’s therefore imperative that you seek early advice before taking any firm decisions, and certainly before taking any steps towards getting divorced.