As a divorce lawyer who specialises in international divorce cases, I am contacted frequently from people living outside England, enquiring whether it is possible to divorce in England. If you are in this situation and need advice please get in contact:
In order to get divorced in England from another country you need to establish jurisdiction.
This simply means that in order to get divorced in a particular country the couple need to prove they have a connection to that country.
One way to establish jurisdiction in divorce is by residence in England but there are time frames involved. Many clients are in no immediate position to assert that they have resided in England for any recent period of time.
But, assuming there ever was a connection with England, a petitioner can assert the concept of “domicile”.
Domicile in divorce
What does domicile mean?
Domicile differs from nationality, or residence. Domicile is the strongest connection a person can have to his or her country, and is acquired at birth. When born, a child’s domicile of origin is the domicile of his/her father if his/her parents are married, or his/her mother if they are not.
You can change your domicile to a domicile of choice. Sometimes people do so intentionally, for example by advising Her Majesty’s Revenue and Customs that they are no longer domiciled in this country.
In the case of Udny v Udny [2001] 1 FLR 921, it was said: “To acquire a domicile of choice, a person must reside in a country with the fixed intention of settling there and making it his or her sole or principal home for an indefinite period. Residence simply means ‘physical presence in a country as an inhabitant of it’. Having acquired a domicile of choice, a person retains it until it is abandoned. Once abandoned, it is possible to acquire a new one. But if there is a hiatus, the domicile of origin revives. Abandonment only takes place when the person has left the country with no further intention of ever residing there again.”
Domicile can be asserted in one of two ways:
How to assert domicile in divorce
- The first method, for European divorces that involve a petitioner from an EU signatory country, is under Article 3(1) of Brussels II revised. The drawback is that both parties must be domiciled in this country. If that can be established, no prior period of residence is required.
- The second, also outlined under Article 3(1) of Brussels II revised, is a “catch all” provision for a petitioner resident outside those EU countries. This method permits a petition to proceed:
“if no court of a contracting state has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun, the English court has jurisdiction.”
This means that in those non-EU countries, if either one of the parties is domiciled in England and Wales, it is sufficient to find jurisdiction in accordance with Section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.
However, it is not a free-for-all. There is also a second stage. Even if jurisdiction is established, then the Judge must also consider whether the applicant’s connection with England and Wales is sufficient for the Court to fully exercise its jurisdiction.
How Nelsons can help
This is a highly specialist area of law. If you reside outside of England and Wales, and are considering issuing divorce proceedings under the jurisdiction of England and Wales then get in touch with a member of our team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
A member of tthe team will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
Contact us