Can Foreign Nationals Divorce in the UK?

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.