Can I divorce my wife/husband if they are not in this country?

If you are married and considering divorce, one of the first things you might wonder is whether you can divorce your spouse if they are not living in the UK. The answer to this question depends on several factors, but in general, you are likely to be able to get a divorce in this country even if your spouse lives abroad as long as you and/or your spouse meet certain jurisdictional criteria.

How does the court decide whether they have jurisdiction to deal with a divorce?

Jurisdictional rules are complex and may vary depending on the specific circumstances of the case. The court typically takes the following into account when considering whether they can deal with a case:

• Domicile is a key factor in determining jurisdiction for divorce proceedings. In order for the court to have jurisdiction, one party must be domiciled in England and Wales, Scotland, or Northern Ireland. Domicile is a concept which reflects a person’s permanent home, where they intend to live for the foreseeable future. It is important to note that domicile can differ from a person’s nationality or the country in which they currently reside.
• Habitual residence also features when determining jurisdiction for divorce proceedings. If neither party is domiciled in the UK, the court may still have jurisdiction if one or both parties are habitually resident there. Habitual residence is determined by the location of the parties’ primary residence, the duration of their stay, and their intentions to stay in the UK. So for example, your primary residence could have been in, say, Leicester for the last few years even though you or your spouse originate from continental Europe, or further afield.
• Besides domicile and habitual residence, the location of assets can also be a factor in determining jurisdiction. If significant assets, such as property or investments, are located in this country, the court may have jurisdiction to deal with the divorce proceedings.

It is important to note that jurisdictional rules can be complex, and it may be necessary to obtain legal advice to determine the appropriate jurisdiction for divorce proceedings.

Why does it matter where my divorce takes place?

As we have discussed earlier in this article, domicile and habitual residence will affect where a divorce takes place. When there are children involved, it can be a crucial factor in deciding where a divorce is held, as the court always puts their needs and happiness above everything else.

Financial outcomes can vary greatly between counties around the world. Assets held in the UK or overseas can have a bearing on where it is considered beneficial for the divorce to be held. For example, if you have a pension overseas, you may decide it is best to divorce in that country in order to protect it better.

If you entered into a pre-nuptial agreement before you married, it may contain clauses that can determine where the divorce takes place.

An added consideration is speed of application. This is likely to have a huge impact on where the divorce process is recognised and held. Typically, a divorce tends to be held in the country of whoever applies first.

In particular countries, only specific types of divorce are recognised, and then in accordance with strict religious rules. For example, Islamic law requires a Talaq divorce, and providing certain criteria is met in the overseas country, it is likely to be legally recognised in the UK. However, if a Talaq divorce takes place in the UK, it will not be recognised in law.

The law in many countries does not consider men and women equal when it comes to a divorce. Depending on your gender, this could be an advantage or negatively affect the settlement. It is always best to seek specialist legal advice if you are considering divorcing a spouse who is out of the country.