You can apply for divorce in England or Wales if your spouse lives in a foreign country, but only if your marriage is legally recognised here and you both meet the domicile or habitual residence requirements. This latter point is important because it will ensure that the court handling your divorce has the legal jurisdiction to handle your divorce. In this article, we will explain the UK requirements for getting divorced from a spouse living in a foreign country and, what is meant by a person’s ‘domicile’ and how this is different to a place of ‘habitual residence’.
UK requirements for divorcing a spouse who is in a foreign country
You can apply for divorce in England and Wales from a spouse who lives in a foreign country under the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) if one of the following requirements are met:
- You are both domiciled in England and Wales.
- You are both habitually resident in England and Wales.
- You were both last habitually resident in England and Wales and one of you is still living here.
- The spouse who is being divorced (the respondent) is habitually resident in England and Wales.
- In a joint divorce application, one of you is habitually resident in England and Wales.
- The applicant is habitually resident in England and Wales and has lived here for at least one year immediately before the divorce application was made.
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
To understand whether you can get divorced in England or Wales if your spouse is in another country, it is important to understand what is meant by ‘domicile’ and ‘habitual residence’ and the difference between the two.
Domicile when divorcing a foreign spouse in the UK
Your ‘domicile’ is where you call home and where you have a substantial connection to. Your domicile may change over time from where you were born (your domicile of origin) to where you move to (your domicile of choice). A person can also have a ‘domicile of dependency’, for example, where a child lives with their parent. You can only have one domicile at a time.
Habitual residence when divorcing a foreign spouse in the UK
Your ‘habitual residence’ refers to where you live most of the time, but it does not need to be your permanent home. It is important to understand that simply being in a country is not enough to be habitually resident there; what matters is that you intend to make that country your place of residence. When deciding whether you have habitual residence in England or Wales, a number of factors are considered, such as where your children attend school, where you receive your post and the language you speak within the home. As with your domicile, you can only have one habitual residence at a time.
Difference between domicile and habitual residence when divorcing a foreign spouse in the UK
A person’s domicile is often their permanent home, whereas a place of habitual residence can be temporary. A person may call their place of birth (e.g. the United States) their place of domicile and live in the UK as their place of habitual residence but intend to return to their place of domicile in the future.
Considerations of divorcing a foreign spouse in the UK
Divorcing a foreign spouse in the UK can be complicated by certain factors such as:
- Whether the divorce process has already been started in another legal jurisdiction – If the divorce process has already been commenced in a different jurisdiction, it may not be possible to initiate the process in England and Wales.
- Overseas financial assets – If financial assets are held in another country, they may be harder to trace, and enforcement actions may be more difficult.
- Disputes over country of domicile or habitual residence – as you can see from the above section, a person’s place of domicile or habitual residence may be difficult to establish, or it may be disputed, which can delay initiating the divorce process in England and Wales.
If you are considering applying for divorce in the UK from a spouse who is living in another country or getting a divorce if you got married abroad, please speak to our family law solicitors at Reiss Edwards. We will listen to the details of your case and advise on the possibility and benefits of divorcing in England and Wales, how to overcome any problems which may prevent you from doing so, and how to ensure that you receive a divorce settlement that reflects your needs and lifestyle.
