Terry & Co.

The Residence or Domicile Requirements for obtaining a Divorce in the English Courts

 


 

 

 

 

 

People very often imagine that they need to be in England to obtain a divorce there. That is not the case. In the great majority of cases neither party needs attend court in order to be able to obtain a divorce and so it is perfectly feasible for a divorce to be obtained in England despite the fact that both parties currently live overseas. For instance, two British nationals who were married in England but who happen at the moment to be working in, say, Hong Kong can obtain a divorce in England because both are almost certainly still "domiciled" in England although they may happen to be working temporarily in Hong Kong (or anywhere else). And they need not come to England to get the divorce. It can be done at a distance.

 

The jurisdiction to grant a divorce in England or Wales depends upon whether at least one of the parties to the marriage has sufficient connection with the country. And it is "England or Wales" because Scotland is a separate legal jurisdiction and so the question in that particular case is whether one of the parties to the marriage has sufficient connection with England or Wales. The two latter countries form one legal jurisdiction within the United Kingdom and Scotland forms quite another.

 

In fact the rules for jurisdiction are quite complicated especially after a Directive of the European Union usually called 'Brussels II' came into force in English law. In very general terms the English courts have jurisdiction to grant a divorce if either spouse

  • (a) is domiciled in England or Wales when the proceedings are begun, or
  • (b) is habitually resident in England or Wales throughout the period of one year ending with the date on which proceedings are begun.

 

The latter condition means that anyone in the world of whatever nationality and wherever they were married can obtain a divorce in England so long as they have been habitually resident here for a qualifying period. In practice this doesn't cause much difficulty because most people expect to be able to obtain a divorce in the country where they are habitually resident and after a year most people would regard themselves as habitually resident here.

 

What is more significant is paragraph (a) because "domiciled" is not the same as "resident" and is much wider. This is what enables many people resident overseas to obtain a divorce here although they do not actually live here at the moment. Naturally, one must have sufficient connection with the country to establish the necessary domicile but it is important to understand that one does not have to actually be in England in order to obtain a divorce here.

 

The most obvious category of people who have an English domicile (and who are thus able to obtain a divorce in England) are those who are working for the time being overseas and this can apply to either or both partners. Notice that only one or other spouse needs to be "domiciled" here (or habitually resident ) in order for either to be able to lodge a divorce petition in the English courts. The other spouse can be of any nationality, habitually resident anywhere or domiciled anywhere.

 

And one can live overseas for a very long time without necessarily losing one's English domicile. This is because one can live overseas with the express intention of returning to England at some time in the future. If that is the case one's English domicile is not lost because one happens to be overseas. In fact, intention plays a very important role in deciding where one has one's domicile and it is quite difficult to prove a person's intention one way or the other. In practice, if one is British it is quite easy to petition for divorce here although one happens to be living overseas. And it is not usually necessary to return to the UK in order to be able to do so.

 

We have seen it said that a British citizen working overeas and wishing to obtain a divorce in England should contact a London solicitor because they have "more experience" of domicile issues. Actually, one needs to be very careful before taking such advice. The fact of the matter is that many London firms - and particularly West End and City firms - charge very high rates indeed. Whereas this can obviously be justified in relation to their overheads and normal client base it may be financially very costly for the individual of average means. Firms with an international presence are not normally geared to the needs of the man in the street and they charge accordingly. Divorce, on the other hand, is precisely the sort of problem which does affect the man (or woman) on the street and so you should always check charging rates before taking advice such as this. The more important thing is to choose an experienced solicitor in whom you have confidence and who understands questions of domicile and jurisdiction.

 

It might also be apparent that there can be cases where it would be possible for a divorce to take place in more than one country. In such cases the spouses may be able to "jurisdiction shop" and use the courts of the country which offers them the best deal. There are rules to decide conflicts of jurisdiction of this sort.

 

It has to be said that since the coming into force of the European Directive often referred to as 'Brussels II' whether or not the English courts have jurisdiction in any given case has become rather complex because there are so many different permutations. Indeed, many practitioners do not fully undertand the position when there is an overseas element.

 

Please contact David Terry at David_Terry@dterry.demon.co.uk if you need specific advice. The concept of "domicile" is quite technical and determining whether the English courts have jurisdiction to grant a divorce where either or both parties live outside the UK can be quite technical.