International Divorce

International Divorce

When you apply for a divorce in a country other than where you are living, or where your permanent home is, this is known as an international divorce. This might happen because you live abroad for work, or because you and your ex end up living in different countries or because you have different nationalities.

If your situation involves two or more countries you need to consider or get advice on  the following:

  • Which countries you can get a divorce in, and
  • If you have a choice of more than one country, which one is likely to give you the best outcome.

The law around divorce varies a lot from country to country. So, if you are thinking about getting divorced abroad it is really important you get legal advice from a lawyer who is an expert in divorce law in that country. This will mean you are well informed from the start about what it involves. In some countries for example you can’t apply for a divorce yourself – a lawyer has to do it. In other countries you may well find that if you want to end a civil partnership entered into in England for example, you can’t because it is not recognised.

You don’t have to get divorced in the country that you were married in, or where you were living when you or your ex decided to end your marriage or civil partnership. In many countries, but not all, you can get divorced in the country in which either of you are settled now, as long as it recognises that you were married in the first place. So, many couples will find that they can get divorced in more than one country.

Where you can divorce will depend on whether the court in the country you want to divorce in has the right and power to deal with your case. At the moment, different rules about ‘jurisdiction’ apply depending on whether you are applying for a divorce inside or outside the European Union.

International Divorce and Divorce within the European Union

You can only get divorced in another country if:

1. Your marriage is legally recognised in the country where you want to apply for a divorce.

For example, if you are a same-sex couple and you married in England (where same-sex marriage is legal), you may not be able to get a divorce in Russia (where same-sex marriage is not legal), even if you have a connection to that country.

2. You can show that you or your ex has a connection with the country that you want to apply for a divorce in.

To get divorced in another country, you must show that you or your spouse have a connection to it. A court only has the right and legal power to deal with your case if you can show this connection. The law calls this ‘jurisdiction’. Different countries around the world have different rules to work out if their courts has the legal power to deal with a case when other countries may be involved. So, it is really important you get legal advice from a lawyer who is an expert in divorce law in the country where you are thinking about getting a divorce.

In The European Union (except for Denmark) you can show your connection to a country by:

  1. Being a ‘national’ of that country
  2. Being ‘habitually resident’ in that country,
  3. Being ‘domiciled’ in that country (only in the UK or Ireland)

We explain what these mean next.

Nationality

To be a national means you have the official right to be a member of a nation state. You can acquire nationality by birth, the nationality of your parents, adoption, or marriage (the rules vary from country to country).

Habitual Residence

‘Habitual residence’ means that you live somewhere regularly. To prove habitual residence, you have to show that you are settled in the country or that you are planning to stay there for a while, even if it is not your permanent home.

How to show you are habitually resident varies from country to country.

For example, in England and Wales the kind of factors that are often taken into account when deciding if you can show habitual residence include: where you usually or always live, work, study, and/or enjoy your leisure time, where you have property, even if rented out, and where you keep your furniture, where your car is registered, your mailing address, where you are registered with a doctor, dentist and where your financial arrangements are based, for example, your bank accounts, your tax status, where you pay National Insurance (NI) contributions.

Domicile

Different countries have different rules about what being domiciled means. So, again, if you plan to rely on this rule to show you are connected to a country you need to get legal advice from a lawyer who is an expert in divorce law in the country where you are thinking about getting a divorce.

In England and Wales ‘domicile’ is where your permanent home is. This doesn’t have to be a permanent address. For example, you can live abroad for work but not plan to stay in that country permanently and as such your birth country remains where you are ‘domiciled’. You will be able to get a divorce in a country if it is your permanent home. It can be the country that you were born in, or a country that you have moved to, if you have made it your permanent home.

BREXIT

The UK left the EU on 31st January 2020 (Brexit). Between now and 1st January 2021, there is a period of time that the government is calling the ‘implementation period’. During this time new rules on trade, travel, business and many other things will be negotiated. For now, until 31st December 2020 at least, all the current rules apply.

If you and your ex are applying for a divorce within the European Union in 2020, there are rules about which country can deal with your divorce, if your situation involves two or more EU countries.

You can get a divorce within the European Union as long as you can show that you meet at least one of these rules:

1. You are both nationals of the country that you are applying for a divorce in.

You are usually a national of a country if you were born in that country or if you moved to that country and have a passport from that country. Generally you can still apply for a divorce in a country where you are both nationals even if you are living somewhere else. This rule doesn’t apply in the UK and Ireland though. Instead you have to show that you are both domiciled in the UK or Ireland.

2. Both you and your ex are habitually resident in the country you are applying for a divorce in.

This means that you both live there regularly. It does not have to be your permanent home. You just have to show that you have both lived there for some time, and that you are both planning to stay there for a while.

3. You are applying for a divorce in the country where you and your ex were last habitually resident before you separated, and one of you still lives there when you apply to divorce.

4. You have been habitually resident in the country where you are applying for a divorce for one year, and you are the one who starts divorce proceedings.

5. You have been habitually resident in the country where you are applying for a divorce for 6 months and you are a national of that country. (Or in the case of the United Kingdom and Ireland that country is where you are domiciled and have been habitually resident for 6 months and you are the one who starts divorce proceedings.)

Country Dilemma

It is very important to take the right decision in relation to divorce proceedings as the  law on divorce varies a lot from country to country. Where you divorce can have an impact on a number of very important things, such as:

  • the types of financial orders the court is likely to make in your favour,
  • the costs involved,
  • the length of time it takes to get divorced and settle finances and arrangements for your children (if you have any),
  • how you sort out arrangements for your children,
  • how easy it is to enforce orders made by the court, in that country or another country.

You may find that getting divorced in one country will financially benefit you more than getting divorced somewhere else. Some countries may favour men over women in the way their court deals with divorce cases. It may be more expensive or take a lot longer to get divorced in one country than in another. So, if you have a choice of countries when it comes to starting your divorce it is important to work out which country will bring you the best outcome.

You also need to think about if it is practical for you to get a divorce in a different country. Divorce is often a very stressful and upsetting process so it is important to think about things such as the length of divorce proceedings in the country that you are considering applying for a divorce in, if you speak the language, and the costs of divorcing overseas.

It is important that you speak to an international family law solicitor or a lawyer in each of the countries you might want to divorce in, before you apply for a divorce to get an idea of how much divorcing abroad will cost, and if it would really benefit you to get a divorce there.

The European Union (except Denmark)

You may be able to show that you or your ex has a connection to more than one country within the European Union, so that there is a choice as to where you get divorced in the EU. Rules in the EU say that the country that receives an application to start a divorce case first will be the only country with the power and right to deal with the divorce.

This means that speed is very important when you are thinking about starting a divorce in another European country. If you think that getting a divorce in one EU country would benefit you more than getting one elsewhere, or if you think that your ex might apply for a divorce somewhere else you need to get specialist advice as soon as you possibly can!

Countries outside of the European Union

If there is more than one country that you can divorce in outside the European Union, it does not matter which court receives the divorce application first. Instead, the court will usually decide if you have a strong enough connection to the country that you are applying to divorce in and as long as your ex agrees the divorce will continue in that country. If however, your ex does not agree, the court will have to determine where the divorce should continue. The law calls this a ‘forum dispute’. Forum disputes are often very lengthy and can cost huge amounts of money. So, it is important to get specialist advice on this before you start your divorce case. You will need to pay some money to get reliable advice from a specialist but if you don’t, you could end up in a complicated and very expensive dispute about which court should deal with your divorce.

Our specialist family lawyers can comprehensively advise you as to all aspects of your divorce including advice on jurisdiction and other necessary considerations.