Divorce In the UK between parties who have married abroad is certainly very common and happens every day, but unfortunately, there are clients who are not aware that this is possible and think that they have to divorce in the country where they married. Not so!
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Furthermore, foreign divorces are also recognised in the UK in many instances.
The goal of this guide is to explain this complex topic for foreign nationals living in the UK, exploring the ins and outs of international divorce under British law and the recognition of foreign divorces in the UK. From discerning vital principles such as domicile and residence to the eligibility and procedure for foreign nationals to divorce in the UK, we want to equip you with a thorough understanding of what lies ahead.
Understanding International Divorce
In UK law, domicile and residence are two fundamental concepts to grasp when dealing with international divorce. Domicile refers to the country a person considers as their permanent residence or lives in and has a significant connection with. In contrast, residence is just where one lives at a particular time. In divorce law, these terms help establish which courts have authority and power over the legal procedures.
The jurisdiction for divorce is typically where the couple is habitually resident or where one or both parties are domiciled. In the UK, courts can hear a divorce petition if either party is habitually resident in England and Wales, domiciled in the UK, or if the couple last lived together in the UK, and one party still resides there.
Recognition of Overseas Divorce in the UK
Under certain conditions, a divorce granted abroad can be acknowledged in the UK. If the divorce is conferred in a nation where one or both parties have their domicile, and it is recognised as legal in that jurisdiction, the UK will typically acknowledge it. Moreover, if it’s concluded that the initial settlement was not equitable or satisfactory, the UK courts can potentially amend financial settlements following an overseas divorce under Part III of the Matrimonial and Family Proceedings Act 1984.
As a general rule, if the marriage is legally recognised in the nation where it was officiated, and both parties can marry under their home country’s legislation, the UK will acknowledge it. Even if it was conducted under religious or foreign laws, a marriage must fulfil specific legal prerequisites to be deemed valid in the UK.
However, it’s crucial to mention that some religious marriages, such as Islamic marriages (Nikah), are not recognised as legally valid without a civil ceremony under British law. However, there is talk of such recognition, and it may not be too long before the law changes to accommodate both Islamic marriages and divorces under the laws of England and Wales, but for the foreseeable future, they do not receive legal recognition under our laws.
Can Foreign Nationals Divorce in England & Wales?
Yes, foreign nationals can divorce in England and Wales as long as specific eligibility criteria are met.
Broadly speaking, at least one party should be residents of England and Wales. Alternatively, both parties should have their last habitual residence in the UK, and one of them should still be residing there. It’s crucial to note that the concepts of habitual residence and domicile are complex, often requiring legal advice to understand their application to individual circumstances.
Foreign nationals who are eligible to divorce in the UK can make several claims. Apart from the dissolution of the marriage itself, these may include financial claims provision, property adjustment, and, if applicable, child custody and maintenance. The amount of entitlement one is entitled to receive depends on various factors, such as the length of the marriage, the current financial and living conditions of both parties and the well-being of any children involved.
Grounds to Get Divorced in England: Explained
The legal prerequisite for divorce in the UK is that the marital relationship has irretrievably broken down. There is no longer a divorce based on fault. The Divorce, Dissolution and Separation Act 2020 reformed the divorce process to remove the concept of fault. Many legal professionals felt that divorce law was out of date, particularly following the 2018 Owen v Owen case, where Mrs Owen could not obtain a divorce from her husband just because she had fallen out of love with him and wanted to move on.
The Act of Parliament was passed in June 2020, which removed fault from divorce proceedings, and the new law came into force on 6 April 2020. So there is no need to prove aspects of fault such as adultery, unreasonable behaviour, desertion and so on. The process is very simple, all a party has to do is to confirm in the proceedings that the marriage has broken down irretrievably. Nothing else is required.
The other party cannot challenge such proceedings. Proceedings can only be contested on the basis that the other party did not know, for example, that they were already married, or that the marriage was void because the parties were related by blood, for example.
Before a divorce takes place, however, the parties should have been married for at least one year.
Any divorce proceedings filed before the law changed on 6 April 2022 will be dealt with under the previous law where fault played a major part, such as irretrievable breakdown of the marriage or civil partnership based on the other party’s unreasonable behaviour, adultery or desertion.
It is not even necessary under the new law to produce the original marriage certificate. If the parties have married in the UK, then a good coloured photocopy duly scanned and uploaded on the HMCTS divorce platform will suffice. If you’re dealing with a marriage that took place outside of the UK, and the marriage certificate is not in English, you will need to have it professionally translated. Once the translation is done, make sure to upload both the original certificate and the translated document.
These grounds for divorce in the UK underscore the importance of obtaining sound legal advice when embarking on divorce proceedings, as different facts require different types of evidence and may have different implications for the divorce settlement.
Do You Need to Attend Court for a Divorce?
The whole idea is to make divorce so simple that it is not necessary for anyone to attend court. In fact, it is so simple now that both parties can make a joint application for divorce.
However, we certainly do not advocate acting for both parties in a divorce, as there may still be conflict-of-interest in due course, especially when one is dealing with financial remedy applications in relation to spousal maintenance, property adjustment orders and the like, when during divorce proceedings the legal adviser may have come to know about the other party’s financial affairs which may then be used against that person if the lawyer acts for the other party.
It is always best for a lawyer to act only for one party in divorce proceedings to avoid complications later on.
Considerations for Divorcing Abroad
While England and Wales are often considered favourable jurisdictions for divorce, particularly for the financially weaker party, it’s crucial to weigh the pros and cons of divorcing in the UK against those of divorcing abroad. For instance, UK courts have wide-ranging powers and are known for being generous in financial settlements. On the flip side, the cost and length of the proceedings can be significant.
Impact of Divorce Location on Settlement and Financial Matters
The location of your divorce can greatly impact your financial settlement. Different jurisdictions have different rules concerning the split of assets and supervision payments. England and Wales are known for their wide discretion and consideration of factors such as earning capacity, the parties’ living standards during the marriage, and each party’s needs and resources.
How Assets Owned in Different Countries Are Divided in UK Divorce
If you or your spouse own assets in different countries, it can complicate the division of assets during a divorce. In general, UK courts can take into account overseas assets when determining a financial settlement. However, enforcing an English financial order abroad can be complex and may require local legal advice.
Divorce can also significantly affect inheritance tax, particularly when overseas assets are involved. If assets are transferred between spouses as part of a financial settlement, they are usually exempt from inheritance tax. However, rules can vary when dealing with overseas assets, so it’s important to seek specialist tax advice.
Divorcing When Living Abroad: Rules and Procedures
The process of divorce in another country can be complex and depends on various factors, such as where the marriage took place, where the couple last lived together, and the current residency or domicile of both parties. Generally, if one party is habitually resident or domiciled in England and Wales, it is possible to apply for a divorce in the UK, even if the other party lives abroad. However, serving divorce papers internationally might be required, which brings its own set of challenges.
For individuals seeking a divorce in the UK with a spouse residing overseas, there’s a need to deliver the divorce documents to them in their residing country. Although sometimes, this can be done by way of a process server in the residing country who will then provide a certificate of service.
In other cases, the service of these documents must adhere to the Hague Convention regulations or, for non-signatory nations, abide by the foreign country’s service rules. Acquiring a Certificate of Service or its equivalent becomes essential to substantiate the receipt of divorce papers by the spouse.
The UK’s departure from the EU, generally referred to as Brexit, has added layers of complication to divorce proceedings between the UK and EU nations. Earlier, the ‘Brussels II’ regulation facilitated mutual recognition of divorces across the EU. However, this mutual agreement ceased post-Brexit, adding intricacy to cross-border divorces. As such, acquiring legal guidance becomes paramount when handling divorce cases between the UK and the EU.
Making Arrangements for Children During an International Divorce
During an international divorce, making arrangements for children can be complex. In England and Wales, the child’s best welfare is the court’s top focus. Where the child will live (residence) and how long they will disburse with each parent (contact) must be determined. If parents cannot decide, the court may be asked to interfere. If one parent wishes to relocate with the child internationally, permission from the other parent or the court is needed.
A parent cannot remove a child from the jurisdiction of England to Wales, for example, on a permanent basis without the consent of the other party or the court, and if any attempt is made to remove a breach of a court order, then an immediate application can be made to the court to prevent removal, as well as notifying all air and sea ports through official channels of a possible kidnapping.
The paramount concern in any child arrangement case is the child’s welfare. In cross-border cases, the Hague Convention provides guidelines to prevent abduction and secure the return of children wrongfully removed or retained by a parent.
The child’s habitual residence plays a critical role in deciding jurisdiction. Factors considered include the child’s wishes, the potential impact of changes in circumstances on the child, and each parent’s capability to fulfil the child’s necessities.
The Divorce Process in the UK for Foreign Nationals
To initiate the divorce procedure in England and Wales, either party must be habitually resident or domiciled in England and Wales. If these conditions are met, a divorce petition can be filed under the new divorce process as described above with the courts in England or Wales, even if one spouse is living abroad.
Filing for Divorce in the UK: Step-by-Step Guide
- Preparing the Divorce Application: This wording now replaces Petition The person initiating the divorce is now the applicant and not the petitioner. The other party is still the respondent.
- Filing the Divorce Application: For those who have instructed solicitors, this can be done online. Others may be able to deal with it in paper format and send it to the court.
- Responding to the Divorce Petition: In most cases, the respondent has 14 days to acknowledge service of the divorce proceeding.
- Applying for a Decree Nisi: This is now referred to as applying for a conditional order. Once acknowledgement of service has been filed in court or the party has obtained an order for deemed service, an application for a conditional order can be made.
- Applying for a Decree Absolute: This is now referred to as applying for a final order. After six weeks and one day from the Conditional order, the petitioner can apply for a Final order, which legally ends the marriage.
If you’ve been served with a UK divorce Application and reside in another country, You will have more than 14 days to reply and file the acknowledgement of service. Usually, you will have 28 days from the date of service. You can agree with the divorce, challenge it, or ignore the petition.
Financial and Child Settlements in International Divorce
Divorce settlements can be particularly challenging when it comes to dividing international assets. In English courts, the process is based on a fair and balanced approach that takes into account various factors, including the duration of the wedding, the economic requirements of both parties, their ages, health, and contributions to the wedding, among others.
Both parties must entirely declare their assets, and the court can enforce this disclosure, even for overseas assets. Wherever possible, out-of-court settlements are encouraged, often facilitated by mediation or collaborative law.
Utilising Non-Confrontational Dispute Resolution Methods
Resolving international divorce issues can be complicated and stressful. Therefore, non-confrontational dispute resolution methods like mediation and collaborative law are often helpful. These processes encourage communication and cooperation between spouses, helping to preserve relationships and reach mutually agreeable solutions. Furthermore, they tend to be more economical and faster compared to legal hearings.
The complexities of international divorce, with different regulations and strategies in play, can be challenging to navigate. It’s crucial to seek professional advice from solicitors experienced in international divorce to ensure your interests are covered, and the procedure is conducted accurately. They can guide you through the legal maze, offer advice tailored to your circumstances, and help negotiate the best possible outcome for you and your family.
Divorcing in the UK as a foreign national is a feasible process, provided certain criteria relating to domicile or habitual residence are satisfied. Recognised as one of the more considerate jurisdictions, especially for the financially weaker party, the UK offers a comprehensive and fair approach to divorce proceedings.
However, it is essential to understand that international divorce, with its inherent complexities and myriad variables, is not a straightforward process. Matters such as jurisdiction, recognition of foreign marriages, asset division across borders, and child custody all contribute to making international divorce a challenging terrain to navigate.
Given these complexities, seeking professional legal advice becomes not just advisable but indeed necessary. Expert guidance from an experienced team of family lawyers like ours at Gulbenkian Andonian Solicitors can help streamline the process, protect your interests, and potentially provide a more favourable outcome. It can also assist in reducing the emotional obligation that the legal complexities of such a process may impose.
FAQs about International Divorce in the UK
A straightforward divorce process in the UK, where both parties agree, can take around 4-6 months from filing the divorce petition to acquiring the decree absolute. However, this does not include financial settlements or child arrangements, which can lengthen the process.
Your visa status in the UK may be subject to change if it was issued based on your marriage and you subsequently get divorced. It’s generally required to inform the Home Office about the dissolution or separation of your relationship. It’s firmly recommended to seek individual legal counsel about your situation.
Absolutely, you are allowed to remarry in the UK, provided your previous marital status has been legally terminated – whether by divorce, death, or annulment. You may be asked to provide proof of your divorce or the demise of your previous partner.
The decision of your spouse to relocate back to their native country after the divorce doesn’t impact the validity of the divorce as per UK law. However, it might introduce complexities in issues concerning child custody, maintenance, or asset division.
The process of enforcing a UK divorce decree overseas is largely dependent on the legal framework of that particular nation. Some countries have mutual arrangements with the UK for enforcing judgements, including divorce-related ones. Consulting with a legal professional in a foreign country could help you understand the process more effectively.
This depends on multiple factors, such as your and your spouse’s place of residence, the location of your assets, and the divorce laws in the countries concerned. Legal counsel is highly recommended to help you make the most informed determination.
Several factors can extend the length of the divorce process in the UK. Disagreements over child custody, financial settlements, or the grounds for divorce can lead to a longer process. Additionally, procedural issues or delays, such as difficulties in serving divorce papers or a court backlog, can also add time to the divorce proceedings.
Initiating a divorce in the UK when your partner resides abroad is feasible, provided particular prerequisites related to residency or domicile in the UK are fulfilled. The divorce documentation must be dispatched to your spouse in their country of residence, observing international guidelines such as those of the Hague Convention.
No, it’s not mandatory to divorce in the country where you tied the knot. The most suitable jurisdiction for your divorce will depend on several aspects, including the current residence or domicile of both spouses. If either spouse has a substantial connection with the UK, the divorce proceedings can be conducted here.
The duration of the divorce process can fluctuate greatly, dependent on individual circumstances. In the UK, if there are no objections and the process goes smoothly, a divorce can take roughly four to six months to complete. However, any disputes over financial settlements or childcare can significantly prolong this period.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.