As family lawyers in the UK, we are often asked how to approach divorce if one party lives in a foreign country.  

My spouse lives abroad – can we divorce in England and Wales?

The courts in England and Wales do have the power to deal with divorces when one party lives abroad, but it is important to make sure that any necessary legal criteria are met before starting your divorce.

Divorcing a spouse if they live in a foreign country: Initial considerations

When divorcing a spouse, if they live in a foreign country, there are some aspects you should consider.

Firstly, you should consider your options for divorce in the jurisdiction (legal system) for each country which may be available. Although the law of England and Wales is robust and fair, there may be strategic advantages to commencing divorce proceedings in a different jurisdiction.

It is therefore important to obtain advice on your legal position under English and Welsh law, but also under the laws of the foreign jurisdiction before you decide on where you want to start divorce proceedings.

The law for divorcing a spouse if they live in a foreign country 

The legal bases for the courts of England and Wales to have jurisdiction to deal with a divorce when a spouse lives in a foreign country are set out in s5 of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973). Specifically, when one party is living in a foreign country, the courts in England and Wales can still deal with a new divorce application provided:

  • Both parties were last habitually resident in England and Wales, and one of them continues to reside there.
  • The respondent (the person responding to the divorce) is habitually resident in England and Wales.
  • For a joint application, either party is habitually resident in England and Wales.
  • The applicant (the person applying for the divorce) is habitually resident in England and Wales and has resided there for at least one year immediately before the 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.
  • Either party is domiciled in England and Wales.

You can see that there are a broad range of scenarios which will allow the courts of England and Wales to deal with a divorce petition when one party is not in the country; however, they all centre around habitual residence and domicile, which need further explanation.

Habitual Residence Explained 

Habitual residence can be complicated, and you should always talk to your lawyer about this in cases where one party lives abroad. Habitual residence is exclusive – a person can only be habitually resident in one country at a given time (although this may change to different countries over time). 

This country will be where they have their ‘centre of interests’. See the case of V v V [2011] EWHC 1190 (Fam), which relies on the report of Dr Alegria Borrás, which clarifies habitual residence. A variety of characteristics would be expected from a person who is habitually resident in a particular country – for example; a court will look at where that person holds property, where their post is received, the language they speak around their house, where children are schooled and many other factors to establish habitual residence. 

In summary, a person has to be able to show, in case it is questioned, that their life really is in their country of habitual residence.

Domicile Explained 

Being domiciled in a particular country is also complex and something to discuss with your lawyer. 

There are multiple types of domicile, but a person will generally be considered domiciled in the jurisdiction where they have their permanent home. 

As with habitual residence, a person can only be domiciled in one place at a particular time, although their place of domicile can change over time. For example, a child will be domiciled where they are born, but this could change as they grow up if their family moves to another country. Then, as an adult, that same person may choose to have their permanent home in a different country, thus changing their domicile again.

Domicile and habitual residence when divorcing a spouse if they live in a foreign country

So, we can see that, in many cases, it will be possible for the courts of England and Wales to deal with a divorce even where one party is living abroad, provided one of the jurisdictional legal criteria are met under s5 DMPA 1973. 

Apply the above criteria to your situation, consider where you and the other party are habitually resident and domiciled. Then, you can be prepared with this knowledge when discussing your case with your lawyer.

Existing proceedings 

Please do bear in mind that if the other party has already commenced divorce proceedings in another jurisdiction, then your options will be more limited. This is outside the scope of this article, but you should talk to your lawyer if this has already happened or if you think the other party might try to do this.

How Watson Morris can help with divorcing a spouse if they live in a foreign country. 

Please contact any member of the team at Watson Morris if you need help with your divorce, if your spouse lives in a foreign country, or if you have any questions about where and how to start your divorce proceedings. We will be able to help you.

Written by Peter Morris

November 20, 2023

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