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Divorce for British Nationals living abroad

This article is an overview of the necessary obligations you will need to be aware of if you are a British national living abroad and considering a divorce, as well as an overall summary of its limitations that may arise.

Written by Raminder Singh Uberoi on 4 May 2021

The complexities around divorce as a whole can be daunting alone, without having to factor in the additional complications of barriers such as location and language. British Nationals are able to use English divorce law if they chose to, but not without meeting some requirements.

Below is a breakdown of the necessary obligations you will need to be aware of, as well as an overall summary of its limitations that may arise.

Please note that this article should not be taken as legal advice or as specific guidance to make decisions, but is just to provide you with an overview of the complexities of the subject as a whole, to assist you in seeking out the correct professional advice from a trusted expert.

It is important to remember when dealing with something like divorce, to not make rash decisions or panic. There are options available to you and no legal decisions should be made without seeking advice from an expert on expat divorce issues.

In most cases, if you are originally from England or Wales, you will be able to divorce under English Law. This, however, is only the case if you are domiciled in the United Kingdom. The English courts retain jurisdiction to grant a divorce based on this legal tie to England.

If you have previously acquired foreign citizenship elsewhere and as a result renounced your English domicile, the chances that you will be able to use English divorce law decrease.

If you are living abroad, one of the following rules must apply to be able to divorce through English courts:

  • Both your spouse and you are domiciled in the UK
  • You and/or your spouse are habitually resident in the UK
  • You are domiciled within the UK and have also lived within the UK for at least six months before attempting to file for divorce
  • Before beginning the divorce process, you alone are both habitually resident and have been in the UK for at least one year

Habitual Residence is determined through a variety of factors by the English courts, based on things such as whether you own property there, pay tax, speak the language, how regularly you are there and your main reasons for being in the country.

Why consider divorce through English law when living abroad?

If no major conditions of a divorce are disagreed upon, the time scale mostly always stays the same. A divorce through the English courts takes around 16 weeks, regardless of whether or not the spouses are living abroad. When haste is key (which is not uncommon for divorce proceedings!) this can be a very important factor.

Another element (at risk of sounding like stating the obvious) is that all of the divorce proceedings, paperwork and legal advice will be in English. But it is another important area to factor into your decision making when deciding on where abouts to carry out your divorce filings;

Some will view local law to where they are currently residing the easiest route on a practicality basis and so they are able to offer a more ‘hands-on’ approach, but on the contrary, could end up complicating the process largely for both spouses more, due to difficult language barriers. Not to mention the varying divorce laws that come with each specific country…

Most countries will have specific laws to follow that may vary from the laws in the UK, along with some small policy changes due to Brexit, so it is always essential to discuss this with a professional expert to make sure that your decision on where to file for divorce will ultimately suit your needs as an individual or as amicable spouses.

An addition factor to mention here is the ability to not have to appear in court when using English court while you are living abroad (on the condition that both spouses agree to the divorce filing itself). This is not always the case in other countries.

Restrictions on foreign-owned property

There are several advantages to carrying out your divorce filing through English courts, but could cause a potential issue when it comes to foreign-owned property.

Judges within English courts are not always able to manage overseas assets legally, as the properties may not fall under their jurisdiction. This can vary depending on the country in question, but is ultimately most commonly dealt with by local solicitors of that jurisdiction.

Planning and prevention

When moving abroad with a spouse, newly married, or just experiencing some doubts or trialling times, you should always consider the future and how best to protect yourselves financially.

Albeit a daunting concept to some (newlyweds in particular), considering a pre-nuptial agreement is a very smart way of planning ahead, allowing you to be prepared if the worst is to happen.

Once married, pre-nuptial agreements allow a couple to draw up a plan on how they would like to split their financial assets in the event of divorce.

This can be particularly important for couples that decide to relocate somewhere abroad or are looking at moving in the future.

This agreement can state details such as:

  • Who is liable to pay divorce fees (e.g. if a business employer/ company moved the spouses abroad for work)
  • In its event, where the divorce should take place
  • The decision of who receives what assets/ financials

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