Current landscape of international divorce
By the year ending June 2021, there were 6 million people living in the UK who had a nationality of a different country. Those who have previously married and divorced in another country may not realise that their international divorce is not able to be recognised in England and Wales. Recognition of divorce is important as it can affect the validity of any future marriage, Wills and inheritance, immigration status, tax status and many other aspects of a person’s life. Before Brexit, all divorces obtained in EU countries were automatically recognised in other EU countries however, for divorces started or obtained since the end of the transition period in December 2020, this no longer applies.
Below, I have answered some of the most immediate questions to help you understand whether your divorce may, or may not, be recognised and what you can do to ensure that it is.
I got divorced in another country, will it be recognised in England?
Each country has their own laws and requirements when it comes to whether they will recognise a divorce obtained in another country. In England and Wales, the requirements for recognising a foreign divorce are governed by the Family Law Act 1986 as well as in case law.
In general, providing the following are met, the Court of England and Wales will recognise an international divorce made in another country if:
- the foreign order is effective under the law of the country in which it was obtained
- at the date at which recognition of the foreign order is sought, either of the parties to the marriage was habitually resident, domiciled or a national of the country in which the foreign order was obtained
What can I do if the Court of England and Wales will not recognise my foreign divorce?
It is possible to make an application to the Court under S55 of the Family Law Act 1986 for a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales.
Providing that it would not be contrary to public policy, the Court will usually grant such a declaration and the divorce would then be recognised.
This is a complicated application to make and legal advice should be sought when considering whether this is necessary.
Can the Court of England and Wales refuse to recognise my divorce?
The Court may refuse to recognise the divorce if any of the following issues arise:
- where an overseas divorce is incompatible with a decision already in existence determining the substance or validity of the marriage, or
- where there was no subsisting marriage in respect of which a divorce or legal separation could be granted, or
- where insufficient notice or no notice of the proceedings in which the divorce was obtained was given to a party, or
- a party had no opportunity to participate in the proceedings and recognition of the divorce would be contrary to public policy, or
- where the divorce was obtained other than by proceedings, there is no official document certifying the divorce and recognition would be contrary to public policy
Will my divorce in England be recognised in another country?
Each country has its own laws and requirements with regards to recognising foreign orders. There are certain conventions which provide for recognition between the countries signed up to those.
However, you can usually obtain a clear list of requirements of the country in which you would like your divorce to be recognised in from the embassy. It may be necessary to engage a lawyer in that country to assist with any application required.
You will usually require a certified copy of your Decree Absolute/Final Order from the Court, along with an official translation of the same. The certified copies will most likely also need to be legalised by the government office.
How can Moore Barlow help?
At Moore Barlow we have International family law solicitors experienced in assisting clients both with applications for recognition of divorce in England and Wales as well as preparing the requisite documents for recognition of English divorce in other countries.
If you would like to find out more information as to whether your divorce may be recognised or the procedure for doing so, please do not hesitate to get in contact.
