Disputes over where in the world to divorce
If you’re considering divorce and you or your partner’s lives span several countries, one of your first decisions is where to dissolve the marriage. If you’re in this situation, what might you consider?
Do I have to divorce in the same country where I married?
People often assume they need to get divorced where they married: this is not true. In fact, you may not be able to divorce where you married if you don’t live in that jurisdiction now.
There is more information on what exactly we mean by a legal geographic area known as jurisdiction.
Where can I get divorced?
Usually, where you can divorce is dictated by where you and your partner call home. If you both reside and work in England and Wales and all your properties and assets are here, it should be a straightforward choice to divorce in England and Wales. It becomes more complex if one or both of you live in a different country or own residences abroad. In this case, you could potentially divorce in any of these locations.
Muddying the water further, different jurisdictions have varying rules for who is eligible to divorce there. For instance, whereas in many areas, residence is required for at least twelve months, you need to have lived in Florida for just six months to use the state’s system for divorce (although being domiciled there is required to agree finances). In the UAE, according to the court which deals with family matters for non-Muslims, couples can be domiciled, resident or even work in Abu Dhabi.
Where you divorce could also have been stipulated if you signed a prenuptial agreement.
Which country should I divorce in?
In many countries, your divorce and financial settlements are tied making where you dissolve your marriage a life-changing choice. The decision can depend on many factors personal to you, including:
- Whether you want the divorce to decide what happens with your children - In some jurisdictions divorce, finance and arrangements for children are viewed as one package where in England and Wales they are treated as three separate work streams.
- The potential size of the settlement - Some countries cap maintenance at a few years where it’s potentially indefinite in others; some areas split assets 50:50 where other court systems are more discretionary.
- The structure of the settlement - If you are requesting maintenance, you may want to divorce where you live to make it simpler to go to court if a payment is missed.
- The financial assets involved - If you need to work out how to split English pensions, it may be easier to come to a settlement
More straightforward considerations include how quickly the divorce and financial settlement will be finalised, the costs involved and the language of proceedings.
Where to get divorced is far from a simple decision but our global network of family lawyers can advise you on the best approach for your circumstances.
Can I divorce in England and Wales if I got married abroad?
If your marriage is valid and you or your partner are ‘connected’ to England and Wales, you can divorce here. To work out if you are ‘connected’ to the country, the legal system considers:
- Where is your ‘habitual residence’? This is the place you currently live on a day-to-day basis. It is where you work, where your children go to school and so on.
- Where are you ‘domiciled’? This is a slightly broader concept. Legally, it is where your father was born but it can also be where, in your heart of hearts, you now call home. If you have moved to France, work in France, speak French, don’t have a British passport and support a French football team, you could claim that you have acquired a French domicile in your life.
If either you or your ex-partner are habitually resident or domiciled in England and Wales, then you can apply to divorce here.
How can I dispute where my ex-partner has chosen to get divorced?
If your ex-partner has started legal proceedings and you are unhappy with the choice of jurisdiction, you can contest it. It will then be up to the courts to decide where proceedings progress.
This is a complicated, costly and potentially upsetting process so before disputing a choice, weigh up whether the ultimate potential financial reward is worthwhile. Another avenue open to you is mediation.
What should I do if my ex-partner disputes where I want to get divorced?
It’s not unusual for both partners to start a divorce in the country that’s most beneficial to them. If this happens, you need to get legal advice immediately to work out your options. There is no longer a system where the first application automatically takes presidency, but it’s still an advantage to make your application quickly.
Think carefully about the right approach for you. Until a final decision is made by a judge, proceedings are put on hold, making disputing a jurisdiction an expensive, time-consuming exercise that takes place before anything substantive in the divorce has even happened.
Navigating complexity
Choosing the right jurisdiction can have a significant impact on the outcome of your divorce. Every day, we work with people who face these complex international issues, such as:
- A person who disputed her divorce being decided in a US state due to the emotional toll of adultery being considered within the award.
- A person who built her career within her husband’s family business and would have been left with nothing if she did not dispute his chosen jurisdiction.
- A couple who each started their own divorce proceedings in different countries and, from a contentious start, agreed an ideal location and settlement together.
- With so much at risk, it is vital to get advice early. We are ready to talk you through your options.
