Guide to international divorce
How to achieve the most favourable outcome
At Clarke Willmott, we have considerable expertise in family law and in successfully managing complex divorce cases, especially those where the parties involved have connections with more than one country.
International divorces often come with an added layer of complexity, so you can rely on us to provide clear and considered advice at every stage of the process – starting with this accessible guide.
We’re always focused on achieving the very best outcome for you, taking into account your interests and the needs of all parties, especially where there are children involved. And while the standard of our advice is first class, our regional structure means we can offer exceptional value, with fees significantly lower than those of comparable City law firms.
Investing in an experienced solicitor with expertise in cross-border issues is likely to deliver a better outcome and a more favourable financial settlement. This underlines the wisdom of seeking sound advice so please get in touch if we can help in any way.
What this guide covers
1. Preparing for an international divorce
Divorce cases involving two or more jurisdictions can be complicated, but it is a process you can plan for.
Below, we’ve listed some of the key considerations. And while we’d never advocate acting in haste, you’ll see we’ve put ‘acting swiftly’ at the top of the list. This is because if you are making a sole application for divorce, being first to apply can make all the difference in international divorce cases.
Acting swiftly
Where a divorce involves parties from more than one EU country, proceedings will be held in whichever jurisdiction is first to receive it. It’s therefore important to apply first in the country where you’re most likely to achieve a favourable outcome. This may be the country where you were born, the country where you have chosen to make your permanent home or another country where you regularly live – or plan to live. We can advise you on what’s likely to prove the most advantageous.
Framing a favourable outcome
Different jurisdictions have different rules and processes for determining the outcomes of a divorce. We can advise you on those that apply in your specific circumstances, giving you a realistic view of what a favourable outcome might actually look like.
Gathering your documentation
Being prepared with all the necessary documentation can help relieve the stress of what is often an already-difficult situation. We can advise you on exactly what you’ll need in your specific circumstances.
2. Deciding where to get divorced
The divorce process and outcomes can vary significantly between jurisdictions, so applying in whichever country is likely to prove most favourable for you can make a big difference.
You will need to fulfil the specific criteria required by the country in question, but in most cases, these are dominated by two things: domicile and habitual residence.
Domicile – your permanent home
You can get divorced in the country of your birth or the country where you have your permanent home. However, an adult can only have one domicile at a time, either a domicile of origin (the country where you were born) or a domicile of choice (the country where you have chosen to make your permanent home), so you may need to decide.
Habitual Residency – a place where you live regularly.
To get divorced in a country other than the one where you were born or have your main home, you must be able to prove habitual residence, either by showing you are settled in that country or that you have plans to stay there for an extended period.
Factors considered as proof of domicile and/or habitual residence include but are not limited to:
- Your nationality
- Where you usually live, work or study
- Where you have property, including rental property
- Your financial arrangements, e.g. where your bank accounts are and where you pay tax
- Whether your move to another country is temporary
At Clarke Willmott, we are highly experienced in the application of English divorce law in international divorce cases. However, we do need to state that when English law is used overseas, there is no guarantee that the same outcome would be reached as in an English court.
Factors that may influence your decision
There are a number of factors that may influence where you choose to apply for divorce. These include:
The welfare of children
In any divorce case involving children, the courts will – quite rightly – put their needs and happiness before anything else. This can be a crucial factor in deciding where to apply for divorce.
Your finances and assets
As financial outcomes vary greatly from country to country, the assets you have and whether they are held in England and Wales or another jurisdiction may also determine where it’s best for you to get divorced. For example, if you have a pension abroad, it may be best to divorce in that country to protect it.
Our thorough understanding of different jurisdictions means we’re well-placed to advise you on this, however complicated your financial affairs may be.
Any pre or postnuptial agreements
Although pre and postnuptial agreements are becoming increasingly common worldwide, different jurisdictions have different rules around whether or not they can be considered and accepted. Getting sound advice is therefore vital.
Religious law in certain countries
In some parts of the world, religion may dictate that only certain types of divorce are recognised. For example, traditional Islamic Law requires a Talaq divorce. This will be recognised in the UK if certain criteria are met in the overseas country. However, a Talaq divorce will not be recognised in another country if it takes place in the UK.
The legal rights of men and women
In certain countries, men and women are not considered equal under the law and this can have an impact on divorce proceedings. At Clarke Willmott, we always try to encourage fairness as that is almost always the best route to a favourable outcome. We can of course advise you on this, whether the circumstances are in your favour or against.
i. Divorce in the UK
While England and Wales share the same divorce law, Scotland and Northern Ireland have their own law.
It is normally the case that an English couple living in England can only be divorced under English Law, and that a Scottish couple living in Scotland can only divorce under Scottish Law.
However, there is scope for couples who split their time between Scotland and England to get divorced under either law, in which case it makes sense to seek legal advice before proceeding.
Divorce under English law
You can start a joint divorce process in England or Wales if you and your partner are both residents of England or Wales or both domiciled in England or Wales when proceedings start.
In sole applications, you can start the process if the applicant has been resident in England or Wales for at least 12 months prior to the beginning of proceedings or the respondent is habitually resident in England or Wales at the beginning of proceedings.
Financial settlements
The financial outcomes of divorce can vary massively from country to country. In England and Wales there is no standard formula for calculating financial settlements. Instead, the court considers all the circumstances and considers a number of specific factors. For example:
- First and foremost, the welfare and financial needs of any children
- How old you both are, and how long you’ve been married, including any time spent living together
- You and your partner’s earning potential and financial needs, at the time and for the reasonably foreseeable future. This includes any health issues or other issues that could affect your ability to earn
- Any additional assets or money either of you brought into the marriage, such as an inheritance
- Any family business interests and involvement
- The comparative value of your respective pension pots.
ii. Divorce inside the European Union
Each country within the European Union has its own specific requirements regarding eligibility for divorce and financial settlements can also vary significantly. However, in most cases, you and your spouse must either be nationals of the country where you are applying for divorce or habitually resident there.
In 2001, the EU brought in Brussels II; an important regulation concerning international divorce in Europe. Among other things, it states that:
- A divorce in one member state is recognised in another member state
- Judgements pronounced in one member state should be recognised in another
- Divorce certificates should not be appealed, except in the event of a material error
Brexit means this is subject to change but until the Brexit process is finalised it remains a key regulation. We will keep you up-to-date on Brexit and any potential implications on cross-EU border divorce matters.
iii. Divorce outside the European Union
If you or your spouse has applied for divorce in England or Wales and the other party wishes to divorce in another country outside the EU, you/they may reject that application – if there are grounds to do so.
If you can’t agree, the courts will decide which country is more appropriate to deal with the proceedings, usually based on which has the closest connection to you, your spouse and your family. The legal term for this is a ’forum dispute’.
These disputes can be protracted and costly, so it makes good sense to seek legal advice before proceeding.
3. International divorce and children
At Clarke Willmott, we recognise that disputes involving children can be exceptionally stressful, especially when parents can’t agree on what’s best for them.
Our international divorce lawyers have the experience, compassion and cool heads to help you navigate even in the most complex and testing of circumstances. We are also able to respond swiftly in urgent cases, such as child abduction.
Taking children abroad
Under the law of England and Wales, parents who’ve been granted primary custody of a child can take them to a different country for less than a month (e.g. for a holiday) without needing the permission of the other parent. However, taking children to another country on a permanent basis requires a Leave to Remove application, unless both parents agree.
In these circumstances, a court will make the decision, keeping in mind the welfare and happiness of the children.
The same applies if a parent in another country wishes to bring children to the UK on a permanent basis.
Child abduction by a parent
In some custody disputes, one parent may go so far as to take their child or children to another country without the permission of either the courts or the other parent.
This is a criminal offence, sometimes referred to as ‘wrongful removal’. If the child is not returned within an agreed time, this becomes ‘wrongful retention’.
In 1983, the Hague Abduction Convention was brought into effect to provide a way of expediting the return of children aged 16 and under who have been wrongfully removed or retained. It seeks to prevent the person who has taken the child from crossing international boundaries in search of a more favourable ruling in a different jurisdiction.
In these circumstances, having good legal advice that takes account of the sensitivities and complexities is paramount.
Contact an international divorce specialist
Whatever your situation, our Family Law team has the experience and expertise to guide you through your divorce process, so please get in touch if we can help.
Call 0800 652 8025 or contact us online to arrange a complimentary initial consultation with a specialist international divorce lawyer. Our Family Law team is based across the country and includes experts in cross-border disputes, child abduction, domestic abuse and complex financial settlements.
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