Whether you can be divorced in one country and married in another all comes down to the question of recognition. Recognition of an overseas divorce is important for several reasons: you may wish to remarry in the UK, for example, divorce also affects Wills, inheritance, tax, welfare benefits, and the financial remedies available.
Whether you can be divorced in one country and married in another all comes down to the question of recognition. Recognition of an overseas divorce is important for several reasons: you may wish to remarry in the UK, for example, divorce also affects Wills, inheritance, tax, welfare benefits, and the financial remedies available.
If you are experiencing issues with your relationship and you feel you need legal advice to resolve matters, contact specialist family solicitor Maria Coster of Stowe Family Law. Maria has an excellent record in family law matters as well as being involved in a number of complex cases involving issues such as domestic violence, substance misuse, and parental alienation.
The courts in England and Wales recognise most foreign divorces, subject to some criteria. However, the recognition of an English divorce in other countries could be problematic because it will be down to the laws of the specific country.
Recognition criteria in England and Wales for divorce in other jurisdictions
A divorce obtained within another court in the UK will be recognised in England and Wales. Although any form of religious divorce, such as an Islamic Talaq for example, will not be recognised.
Any divorce started in an EU state after the end of the Brexit transition period, who are not signatories to the Hague Convention are treated in the same way as non-EU countries. In these cases, recognition will depend on whether the divorce was obtained via “legal proceedings” or “other than by means of proceedings”.
A divorce obtained overseas by means of legal proceedings, including court as well as other non-court proceedings such as a degree of state or other official involvement, will be recognised if:
- The divorce is valid in the country in which it was obtained
- At the beginning of the divorce proceedings, either spouse was resident or domiciled or a national of the country where the divorce was obtained
- Both spouses received notice of the proceedings
Recognition of divorces obtained otherwise by way of legal proceedings, is more uncertain. For the divorce overseas to be recognised, neither party can be a habitual resident in the UK for a year before the divorce is started. And each party must be domiciled in the country of the divorce, or in a country which recognises the form of the divorce. This includes religious divorces. In addition, the divorce must also have begun and ended in the same country.
What is domicile and habitual residence?
Domicile and habitual residence is a complicated area of law and even has its own body of case law to prove it. Habitual residence within the context of divorce is generally considered as being where an individual has established, on a fixed basis, their permanent centre of interests, and there is a habitual element to that residency.
Domicile is not the same as nationality or residence. Under English law, an individual cannot be without a domicile, although it is only possible to have one at any given time. Generally speaking, domicile is typically the country where the person has the closest long-term connection. However, it is possible for someone to be habitually resident in one country but to retain domicile in another.
There are three central types of domicile. These are:
- Domicile of origin (acquired at birth)
- Domicile of choice (combination of residence in a country and an intention to make your permanent home there)
- Domicile of dependence (this is applies to children under the age of 16 and follows the domicile of their parents)
If you have been divorced abroad and are unsure of your status, it would be sensible to obtain legal advice from a specialist divorce solicitor who will be able to look at any documents you have and advise accordingly.
Can a foreign national divorce in England and Wales?
Your first consideration before beginning divorce proceedings must be whether the English courts have jurisdiction over your matter. If you want to divorce, you must fall into one of the following categories:
- You/your spouse are habitually resident in England or Wales
- You or your spouse lived in England or Wales and one of you still lives there
- You wish to apply for divorce and have lived in England or Wales for 1 year
- You wish to apply for divorce and have lived in England or Wales for 6 months, and you are domiciled in England or Wales
- You/your spouse are both domiciled in England or Wales
- Either you or your spouse are domiciled in England or Wales and no other EU country has jurisdiction under any of the above criteria.
Find The Best Divorce & Family Lawyers Near You
We independently review and list the top divorce lawyers and family solicitors in the towns and cities near you. 100% free.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
