Getting an international divorce

This know-how will help you to think about what things you need to consider if you are getting a divorce in another country, or married, or live in another country, and will help you work out where to get divorced.

What is international divorce?

International divorce is when you apply for a divorce in a country other than where you are living or where your permanent home is.

You don’t have to get divorced in the country that you were married in or where you were living when your relationship broke down. You can get divorced in any country in which either of you are settled now, as long as it recognises that you were married in the first place. There are lots of couples who will find that more than one country has the power to deal with their divorce.

If you or your ex has a connection to another country and you are applying for a divorce there, you should get advice from a solicitor who specialises in international family law.

Where can I divorce?

Where you can divorce will depend on whether the courts in the country you want to divorce in have the right and power to deal with your case. The law calls this right and power ‘jurisdiction’.

Different rules about ‘jurisdiction’ apply depending on whether you are applying for a divorce inside or outside the European Union.

General Rules

 You can get divorced in another country as long as:

1. You can show that you or your ex has a connection with the country that you are applying for a divorce in

To get divorced in another country, you must show that you or your ex has a link or connection to it. A court only has the right and power to deal with your case if you can show this link. This link or connection can be nationality, habitual residence or domicile.

Habitual Residence

Habitual residence means that you live somewhere regularly. To establish habitual residence, you have to show that you are settled in the country or that you are planning to stay there for a while, even if it is not your permanent home.

The kind of factors that are often taken into account when deciding whether you can show ‘habitual residence’ include:

  • Where you usually or always live, work, study, and/or enjoy your leisure time.
  • Whether any move out of a country is only temporary.
  • Where you have property, even if rented out, and where you keep your furniture.
  • Where your car is registered.
  • Your mailing address.
  • Where you are registered with a doctor, dentist etc.
  • Where your mobile phone is registered.
  • Where your financial arrangements are based, for example, your bank accounts, your tax status, where you pay NI contributions.
  • Your nationality.

Domicile

Domicile is where your permanent home is. You will be able to get a divorce in another country if it is your permanent home. It can be the country that you were born in, or a country that you have moved to and that you have made your permanent home. The law calls this ‘domicile’.

An adult can only have one domicile at a time – either a domicile of origin or a domicile of choice. A domicile of origin is the domicile which everyone acquires automatically at birth. For most people, their domicile of origin will be the country they were born in. Domicile of choice occurs when you live in a different country from your domicile of origin and you intend to make that new country your home permanently.

The kind of factors that are often taken into account when deciding on your domicile include:

  • Where you usually or always live, work, study, and/or enjoy your leisure time.
  • Whether any move out of a country is only temporary.
  • Where you have property, even if rented out, and where you keep your furniture.
  • Where your car is registered.
  • Your mailing address.
  • Where you are registered with a doctor, dentist etc.
  • Where your mobile phone is registered.
  • Where your financial arrangements are based, for example, your bank accounts, your tax status, where you pay NI contributions.
  • Your nationality.

 2. Your marriage is legally recognised in the country that you are applying for a divorce in

You can only get a divorce in a country where your marriage is legally recognised. For example, if you are a same-sex couple and you married in England (where same-sex marriage is legal), you may not be able to get a divorce in Australia (where same-sex marriage is not yet legal), even if you or your ex have a connection to it.

Specific rules

Inside the European Union

If you and your ex are applying for a divorce within the European Union, there are specific rules that decide which country can deal with your divorce.

You can get a divorce within the European Union as long as you can show that you meet at least one of these rules:

1. You are both nationals of the country that you are applying for a divorce in

You are usually a national of a country if you were born in that country or if you moved to that country and have a passport from that country.

You can still apply for a divorce in a country where you are both nationals even if you are living somewhere else.

The law is slightly different if you are applying to get a divorce in the United Kingdom or Ireland. Instead of being United Kingdom or Irish nationals, you must show that you are both ‘domiciled’. This means that the United Kingdom or Ireland is your permanent home, or that you moved to the United Kingdom or Ireland because you wanted to make it your permanent home.

2. Both you and your ex are habitually resident in the country you are applying for a divorce in.

This means that you both live there regularly. It does not have to be your permanent home. You just have to show that you have both lived there for some time, and that you are both planning to stay there for a while.

For example, Jean is a French national. Jean marries Louise who is a British national in France. They live there for 12 years. Their relationship breaks down and they decide to get a divorce. Louise wants to apply for a divorce in England.

Louise won’t be able to apply for a divorce in England because they aren’t both English nationals. But they can apply for a divorce in France. This is because they have both lived there together for a long period of time and so will be able to show that they both have a connection to France.

3. You are applying for a divorce in a country where you and your ex were last habitually resident before you separated, and one of you still lives there when you apply to divorce. 

For example, Dan and Jana got married in Wales. They split up and Dan, a British national, stayed there. Jana decides to move to Cyprus. Dan wants to apply for a divorce.

Dan could apply for a divorce in Wales. This is because it is the last country where Jana and Dan were both ‘habitual residents’ and because Dan still lives there.

4. You have been habitually resident in the country that you are applying for a divorce in for one year, and you are the one who starts divorce proceedings. 

For example, Erica and Ajit are both Polish nationals. They married in England and decided to live there. Then they separated and left England. Ajit went to Belgium to live and Erica moved to Romania. Erica wants to start divorce proceedings.

In this situation, Erica and Ajit could both apply for a divorce in Poland because they are both Polish nationals. But once Erica has lived in Romania for one year, she could apply for a divorce there.

5.    You have been habitually resident in the country that you are applying for a divorce in for 6 months and you are a national of that country. (Or in the case of the United Kingdom and Ireland that country is where you are domiciled and you are the one who starts divorce proceedings.)

For example, Mohammed is a French national and Shivani is an English national. They married in the Netherlands and decided to live there. After they separated Shivani moved to live in England permanently. Mohammed stayed living in the Netherlands. Shivani wants to start divorce proceedings.

In this situation, Shivani could apply for a divorce in England after 6 months of living in England, as it is where she intends to make her permanent home.

6.    You are applying for a divorce in a country where the person who will respond to the divorce is habitually resident.

For example, Stefan and Jane were married in Italy where they both lived and worked. They split up and Stefan decided to move back to England, where he is a national. Jane, who is an Italian national, decided to move to Hungary. Jane wants to start divorce proceedings.

In this situation, Jane could apply for a divorce in Hungary once she has lived there for a year. She could also apply for a divorce in England if Stefan, the person who will respond to the divorce proceedings, is habitually resident there.

If Stefan wants to start divorce proceedings, he could apply for a divorce in England once he has lived there for 6 months.

7.    You are jointly applying for a divorce in a country where either you or your ex is habitually resident.

This rule applies if you and your ex are applying for a divorce by consent or in circumstances where you can present a joint divorce petition. This is not possible in all countries.

Outside the European Union

If you are applying for a divorce in a country outside of the European Union, the courts will usually decide which country has the power to deal with the divorce by deciding which country has the closest connection to your family.

What if I can get divorced in more than one country?

Forum shopping

The law on divorce is not the same in all countries. Where you divorce can have an impact on a number of things, such as how you share your finances, and how you sort out arrangements for your children. For example, you may find that getting divorced in one country will financially benefit you more than getting divorced somewhere else.

Some countries may favour men over women in proceedings, or it may be more expensive to get divorced in one country than it will be to get divorced in another. When this happens, it is important to work out which country will bring you the best outcome. This is called ‘forum shopping’.

You must also think about whether it is practical to get a divorce in a different country. Divorce can be a very stressful and upsetting process so it is important to think about things such as the length of divorce proceedings in the country that you are applying for a divorce in, whether you speak the language of the country that you want to divorce in, and the cost of divorcing overseas.

It is important that you speak to an international family law solicitor before you apply for a divorce to get an idea of how much divorcing abroad will cost, and whether it would benefit you to get a divorce there.

You can search for a family law solicitor that specialises in international divorce by using Resolution’s Find a specialist service, and selecting ‘European and International law’.

The European Union

You may be able to show that you or your ex has a connection to more than one country within the European Union. If this happens, the country that receives an application to start divorce proceedings first will be the only country with the power to deal with the divorce.

This means that speed is very important when you are thinking about starting divorce proceedings in another country, especially if you know that getting a divorce in one country within the European Union would benefit you more than getting a divorce elsewhere, or if you think that your ex might apply for a divorce somewhere else.

Countries outside of the European Union

If there is more than one country that you can divorce in outside of the European Union, it does not matter which court receives the divorce application first. Instead, the courts will usually decide whether you have a strong enough connection to the country that you are applying to divorce in. The law calls this a ‘forum dispute’. A forum dispute is often very lengthy and can cost a lot of money. So, it is important to get specialist advice on this before you start your divorce case.

For more information and help if you are divorcing or thinking of it see Going to the family court.

November 2016

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