When love crosses borders, the law often follows, but not always in the way you expect. In this blog, I break down the key issues surrounding overseas marriage and cross‑border divorce, answering five of the questions I’m most frequently asked and explaining the options available to you.
- Can I get a divorced in England if I married abroad?
In most cases, the answer to this question is yes meaning you do not have to get divorced in the country where you married. However, there are requirements that must be met:
(a) You must have a valid marriage certificate and if it is not written in English, then a certified translation will need to be obtained.
(b) The marriage must be a “valid” marriage under English law.
(c) You must meet domicile/habitual residence requirements (explored in further detail later in this article)
The key issue is to determine that the marriage was lawful in the country where the ceremony took place. If the marriage was carried out in accordance with local customs, then chances are, it is a lawful marriage under English law.
- Can I get divorced in England if my spouse lives abroad?
Again, in most cases the answer to this question is yes. One of the following must apply:
(a) Both you and your spouse are habitually resident in England and Wales;
(b) Both you and your spouse were last habitually resident in England and Wales, and one of you still resides here;
(c) Your spouse is habitually resident in England and Wales;
(d) You are habitually resident in England and Wales and have resided here for a year;
(e) You are habitually resident in England and Wales and have resided here for 6 months and you are also domiciled in England and Wales;
(f) Both you and your spouse are domiciled in England and Wales
- What is habitual residence?
To be habitually resident in England and Wales, you must be able to establish that your “centre of interest” is there, for example, home, work, family, finances, healthcare. There is no defining feature of habitual residence, but it is the country where you spend most of your time.
- What is domicile?
Domicile is a more technical legal term. “Domicile of Origin” is the country in which your father was born. For example, if you were born in Canada, but your father was born in England, then your domicile of origin will be England.
You can change your “Domicile of Origin” to a “Domicile of Choice”. To do this, you would need to permanently move to a new country and sever ties with your domicile of origin. This is a complex legal issue and expert advice should be taken.
- Are there advantages of getting divorced in England compared to getting divorced abroad?
If you have a choice about where to get divorced, it is important that you seek legal advice to determine which jurisdiction is better for your particular case.
Jurisdiction can significantly impact financial outcomes, property division and even spousal maintenance. English courts are known for adopting a discretionary approach aiming for fairness and equality rather than rigid formulas, which can be advantageous for the financially weaker party. This is not always the case in countries where assets may be divided according to strict legal rules or cultural expectations.