As a family law team with a wealth of experience in international cases and cross border divorces, we are regularly instructed by clients who live in other jurisdictions. There are many reasons for moving abroad to live but we are often consulted when a couple have moved overseas for employment reasons. The expat lifestyle can be challenging and this can lead to difficulties within a marriage. Many British expats that we advise are not aware that even though they are physically living in another jurisdiction, they can still issue divorce proceedings within the jurisdiction of England and Wales. Furthermore, the cases can often be dealt with remotely so that they do not need physically to meet a lawyer in England or court if necessary.
In order to bring divorce proceedings in England and Wales, you have to establish that you have been married for one year before the presentation of the petition. You must also demonstrate that you can divorce in England and Wales on jurisdictional grounds by showing that:
- You and your spouse are habitually resident in England or Wales
- You wish to commence the divorce and your spouse lives in England or Wales
- You wish to commence the divorce and you have lived in England or Wales for 1 year
- You wish to commence the divorce and you have lived in England or Wales for 6 months, and you are domiciled in England or Wales
- You and your spouse are both domiciled in England or Wales
From the checklist above, if you are an expat living abroad, you will not be able to show habitual residence to claim jurisdiction. However, if you and your spouse can prove that England and Wales is your domicile, then this may be sufficient to enable the divorce to proceed here.
To explain domicile further, it is important to understand that everyone is born with what is known as a ‘domicile of origin’. At birth you acquire the domicile of your father, or mother if your parents were separated at the time of your birth. A person must always have a domicile but can only have their domicile in one country. After the age of 16, a person can acquire a new domicile by moving to another country and intending to remain there permanently. It is therefore possible to change your domicile of origin for what is known as a domicile of choice. However, given that for expats, the move abroad is often temporary, it is usual for expats to retain their domicile in their home country. Therefore, if a couple have moved abroad for work reasons and the marriage then breaks down, it is likely that the divorce can proceed in England and Wales on the basis of their domicile.
The issue of jurisdiction is complex so it is important to understand these key issues from the outset to understand and protect your position. Our dedicated family law team at Moore Barlow have specialist lawyers who can assist with all of your international enquiries so please do not hesitate to contact us.