Expats and Divorce - Legal Advice

Should you be living outside of England and Wales when your marriage breaks down and a divorce situation arises there will be the question of whether a divorce petition can be issued in the English courts. The same question will be asked by those who now live in England and Wales but were married elsewhere.

The English legal system will be much more convenient and certainly quicker and cheaper than using the court system of the country where you are living. In many instances expats would anyway be prevented from doing so.

A word of warning however. There are limitations on what can be ordered through the English court system. Any foreign owned property will not come under the jurisdiction of the English courts.

A divorce court therefore cannot make orders in respect of family assets outside of the country unless the other party is in agreement. This means that, for instance, the Court cannot order that a house in France be transferred to one particular party if this is disputed. Ownership would have to be dealt with by a French divorce lawyer which would of course involve additional cost.

The first and most important question to be answered is where you are 'domiciled'. Domicile is a legal term which considers a number of factors including where you were born, where you are living now and your intentions for the future. This will be the deciding factor when deciding whether the UK court can grant a divorce.

Residence and domicile are not the same thing. You can well be a resident and have lived in Spain for many years but still be domiciled in the UK. The jurisdiction of the Court will not be questioned in the vast majority of cases.

Domicile can be a rather obscure legal concept but basically means that you have retained a legal connection and fixed intention to return to your country of domicile. It is determined primarily by intent. A good indication can be where a person registers to vote.

The basic principle is that a person acquires the country of domicile from their father. In certain circumstances, it is sometimes possible for an individual to change their country of domicile, if they change the place they regard as their permanent home, although this requires more than merely relocating to another country.

Domicile is not the same as nationality or residence. Whilst an individual can be resident in two countries at one time, one cannot be domiciled in two countries at any given time.

As you cannot have domicile in more than one country, your domicile in England and Wales will not usually be questioned unless you have relinquished your domicile by:- o taking out foreign citizenship or naturalization or o cutting all ties with England and having the intention to remain in your chosen country for the rest of your days Therefore in most circumstances anyone originally from England or Wales can use the English Courts, on the basis that they are 'domiciled' in the UK.

The House of Lords has said that the test to be applied by divorce judges should be, "was the connection with England of the petitioner sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage." As long as an English court is satisfied that England is the Petitioner's 'home country' and he has not 'abandoned' his home country then the court can deal with a divorce, even in cases where someone has lived abroad for many years.

It has been known for some judges to query a divorce, at the Decree Nisi stage, on the grounds of domicile, where there is a suspicion that the petitioner has 'relinquished their domicile', and formed an intention to spend the rest of their days in their adopted country i.e. that the party has relinquished their 'domicile of origin', and adopted a 'domicile of choice'.

If this should happen the judge will require the petitioner to file further evidence of domicile before the decree nisi can be pronounced. In the vast majority of cases however the jurisdiction of the court will not be questioned.

Remember that the law in England and Wales is different from the law in Scotland. If you and your spouse, or one of you, consider yourself to be Scottish citizens, you both normally live in Scotland, have lived in Scotland during the marriage and have a stronger connection with Scotland than with England; it could well be that you will have to present your divorce petition to a Scottish court.



By: Andrew John Dutton
Legal advice and help from qualified lawyers is available online from Legal-Zone. In addition to free information on most usual area of law it contains an advice section where qualified and experienced lawyers will advise you on legal problems.You can also download very reasonably priced legal documents and e-books. http://www.legal-zone.co.uk/legal_advice