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Can I divorce in England if I was married overseas or if I have a foreign pre-nuptial agreement?

Family courts in England and Wales are less concerned with where you were married, but rather where you (and your spouse) live and where you are domiciled.

In order to apply for a divorce in England you need to satisfy the court that it has jurisdiction to deal with your case. In doing so, the court will consider where you and your spouse are habitually resident and where you are each domiciled. Whilst the concept of "habitual residence" is often straightforward, as a question of fact, the concept of "domicile" may be more complicated.

Domicile is a legal concept and requires careful consideration. There are three concepts of domicile - domicile of origin (where you were born), domicile of choice (where you choose to live and where you intend to stay permanently) and domicile of dependence (relevant to minor children whose domicile is dependent on that of their parents). There has been much case law on the concept of domicile over the years and it is important to take specialist legal advice as to which country you or your spouse is domiciled before issuing divorce proceedings.

In order to proceed with an application for divorce in England and Wales you must satisfy the court that at least one of the following applies:

  • Both parties are habitually resident in England and Wales;
  • Both parties were last habitually resident in England and Wales and one of them continues to reside there;
  • (In a joint application for divorce) either of the parties is habitually resident in England and Wales;
  • The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  • The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  • Both parties are domiciled in England and Wales; or
  • Either of the parties is domiciled in England and Wales.

Assuming the court agrees that you meet at least one of the above criteria you will be able to proceed with your application for a divorce in England and Wales even if you did not get married in this country.

Sometimes, however, another country may have jurisdiction to entertain divorce proceedings at the same time. If this is the case, the appropriate forum will generally be decided on the basis of which country the family has the closest connection to ("forum conveniens"). The court will consider which jurisdiction is the "natural forum" for the divorce; i.e. where the parties have the strongest connection. This involves careful consideration of a number of factors, including where would be most convenient, where the parties live and where they work/carry out their business etc. The existence of a pre-nuptial agreement entered into in a foreign jurisdiction may be relevant but it will not be decisive. Again, this is a highly technical area which has been the subject of much case law over the years.

The jurisdiction in which your divorce proceeds will have a substantial impact on the outcome of any financial proceedings. England has over recent years earned a reputation as the "divorce capital of the world" and it is often seen as the most generous jurisdiction to the financially weaker party. The court has wide reaching powers, such as the ability to order lifetime spousal maintenance, transfer property and assets from one party to the other (irrespective of which party owns the asset in question) and even invade trust assets. For this reason many people try to file divorce proceedings in England in order to secure a more generous financial award. The difference between the potential outcome in England and Wales, and that of a court overseas, can amount to tens - or even hundreds - of millions. It is therefore vital to take advice from a specialist family lawyer at the earliest opportunity in order to plan for, or indeed prevent, divorce proceedings in this jurisdiction.

Interested in knowing more? here and a copy of our Family Law Glossary - that tackles some of the common terms that crop up during the course of proceedings - can be found here.

More information on divorce can be found in our FAQs


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