Different countries have different laws and regulations in relation to divorce. This can range from the grounds for divorce (i.e., what you need to prove to the court to be entitled to a divorce) to financial provision made on the divorce. For this reason, it might be advantageous for you to divorce in one country rather than another. Sometimes there are disputes around which country should deal with a divorce as there may be financial implications that one spouse wants to avoid.
If you want to divorce in the UK, you will need to consider your domicile and habitual residence.
Domicile
Domicile basically means the country you have the most ties with. You can only have one domicile at a time. Everyone starts off with a ‘domicile of origin’ which is where their father was domiciled when they were born (if their parents are married) or their mother (if not or if the married father died before their birth).
You can change this is one of two ways, the first being by establishing a domicile of choice. This is achieved by permanently moving to another country and establishing roots there. Exactly what is required is not clear cut so it is important to take expert advice if this might be an issue in your case.
The third route to establishing a domicile is the domicile of dependency. This really only applies to children – their domicile will follow their relevant parent’s domicile. If the child becomes and adult and leaves the country, their domicile will revert back to their domicile of origin until a domicile of choice is established.
Habitual residence
Habitual residence is a lot more fluid than the concept of domicile. It is based on the concept of a ‘centre of interests’. Many things work together in establishing a centre of interests e.g. where someone works, where they own property, where children go to school etc.
What is needed to divorce in England and Wales?
Not everyone can divorce in England and Wales. It can be quite an attractive forum for divorce as our laws may be considered more favourable in certain circumstances that those of another country. To divorce in England and Wales, you must be able to show:
- Both spouses are habitually resident in England and Wales.
- The respondent is habitually resident in England and Wales.
- Both spouses were both last habitually resident in England and Wales and one of them continues to reside there.
- On a joint application, either spouse is habitually resident in England and Wales.
- The applicant 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.
- Both spouses are domiciled in England and Wales.
- Either spouse is domiciled in England and Wales.
Section 5(2) Domicile and Matrimonial Proceedings Act 1973
This is not always straightforward and if you think that there could be a jurisdictional issue in your case, please contact one of our expert team.
Please be aware that Scotland has a different legal system from England and Wales. If your case is linked to Scotland and you may want to divorce there, you should take specialist advice in that jurisdiction.