Getting an international divorce

This short guide will help you work out what you need to consider if you are thinking about divorcing in another country.
Introduction

You may have heard about changes to divorce law, including the new 'no-fault divorce' option. We expect that people starting a divorce who want to use this option will be able to sometime in Autumn 2021.

When you apply for a divorce in a country other than where you are living, or where your permanent home is, this is known as an international divorce. This might happen because you live abroad for work, or because you and your ex end up living in different countries or because you have different nationalities.

If your situation involves two or more countries you need to do two things:

  1. Work out which countries you can get a divorce in, and
  2. If you have a choice of more than one country, work out which one is likely to give you the best outcome.

This guide is in two parts. The first part helps you work out which countries you might be able to get divorced in. Then, if you can get divorced in more than one country, read the second part to help you choose which country is the best one for you to apply for a divorce in.

In this guide we use the word ‘ex’ to mean your husband, wife or civil partner who you are separated from or who you are in the process of separating from now.

We will explain unusual or complicated terms as we go along but there is also a section at the end you can look at called What does it mean?

For more information and help if you are divorcing or thinking about divorcing in England or Wales see Going to the family court.

March 2020
Part 1 - Working out where you can divorce

Get specialist advice as soon as you can

If you or your ex has a connection to two or more countries and you are thinking about divorcing, you should get advice from a solicitor who specialises in international family law. This is really important because if you have a choice of different countries to get a divorce in, a divorce in one country might end in a much better outcome for you than one somewhere else.

Don’t worry - we will explain how to get advice later in the guide.

The law around divorce varies a lot from country to country. So, if you are thinking about getting divorced abroad it is really important you get legal advice from a lawyer who is an expert in divorce law in that country. This will mean you are well informed from the start about what it involves. In some countries for example you can’t apply for a divorce yourself - a lawyer has to do it. In other countries you may well find that if you want to end a civil partnership entered into in England for example, you can’t because it is not recognised.

You don’t have to get divorced in the country that you were married in, or where you were living when you or your ex decided to end your marriage or civil partnership. In many countries, but not all, you can get divorced in the country in which either of you are settled now, as long as it recognises that you were married in the first place. So, many couples will find that they can get divorced in more than one country.

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

At the moment, different rules about ‘jurisdiction’ apply depending on whether you are applying for a divorce inside or outside the European Union. There are lots of different rules. First of all, we explain the general rules about getting an international divorce and then we explain the rules that only apply if your divorce will take place inside the European Union.  

Key things you need to know about getting an international divorce

You can only get divorced in another country if:

1.      Your marriage is legally recognised in the country where you want to apply for a divorce

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 Russia (where same-sex marriage is not legal), even if you or your ex have a connection to that country.

2.      You can show that you or your ex has a connection with the country that you want to apply for a divorce in

To get divorced in another country, you must show that you or your ex has a connection to it. A court only has the right and legal power to deal with your case if you can show this connection. The law calls this ‘jurisdiction’. Different countries around the world have different rules to work out if their courts has the legal power to deal with a case when other countries may be involved. So, it is really important you get legal advice from a lawyer who is an expert in divorce law in the country where you are thinking about getting a divorce.

In The European Union (except for Denmark) you can show your connection to a country by:

  • Being a ‘national’ of that country

  • Being ‘habitually resident’ in that country,

  • Being ‘domiciled’ in that country (only in the UK or Ireland)

We explain what these mean next.

Nationality

To be a national means you have the official right to be a member of a nation state. You can acquire nationality by birth, the nationality of your parents, adoption, or marriage (the rules vary from country to country). So, for example, if you were born in France and both your parents were born in France you will be a French national.

Habitual Residence

‘Habitual residence’ means that you live somewhere regularly. To prove 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.

How to show you are habitually resident varies from country to country.

For example, in England and Wales the kind of factors that are often taken into account when deciding if you can show habitual residence include:

  • Where you usually or always live, work, study, and/or enjoy your leisure time,

  • If 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 National Insurance (NI) contributions,

  • Your nationality.

Some of these factors may be accepted under other countries’ rules about habitual residence too. But if you plan to rely on this rule to show you are connected to a country you need to get legal advice from a lawyer who is an expert in divorce law in the country where you are thinking about getting a divorce.

Domicile

Different countries have different rules about what being domiciled means. So, again, if you plan to rely on this rule to show you are connected to a country you need to get legal advice from a lawyer who is an expert in divorce law in the country where you are thinking about getting a divorce.

In England and Wales ‘domicile’ is where your permanent home is. This doesn’t have to be a permanent address. For example, you can live abroad for work but not plan to stay in that country permanently and as such your birth country remains where you are ‘domiciled’. You will be able to get a divorce in a 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, if you have made it your permanent home.

You can only have one domicile at a time - a domicile of origin, domicile of dependency or a domicile of choice:

  • Domicile of origin is the domicile which everyone acquires automatically at birth, from their father, or if not married, from their mother. For most people, their domicile of origin will be the country they were born in.

  • Domicile of dependency is the domicile which you acquire from another person when you are dependent on them. For example, from your parent when you are under 16 years old.

  • Domicile of choice happens 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.

·       If 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 nationality.

Part 1 - continued... divorcing within the European Union (except Denmark)

Be aware!

There can be important financial effects of stating where you are domiciled in terms of tax
you may have to pay. 

This is a complex area and if you have business interests or investments you should get independent legal advice on this issue before you openly state where you are domiciled. You need to get legal advice in the country you are thinking about divorcing in and in the country where you have business interests. If you are thinking about moving to another country you need to get legal advice there too!

The UK left the EU on 31st January 2020 (Brexit). Between now and 1st January 2021, there is a period of time that the government is calling the ‘implementation period’. During this time new rules on trade, travel, business and many other things will be negotiated. For now, until 31st December 2020 at least, all the current rules apply.

If you and your ex are applying for a divorce within the European Union in 2020, there are rules about which country can deal with your divorce, if your situation involves two or more EU countries.

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. Generally you can still apply for a divorce in a country where you are both nationals even if you are living somewhere else. This rule doesn’t apply in the UK and Ireland though. Instead you have to show that you are both domiciled in the UK or Ireland.

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. They separate and 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 are not both domiciled in England. But she 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 are habitually resident there.

3. You are applying for a divorce in the 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 where you are applying for a divorce 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 where you are applying for a divorce 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 have been habitually resident for 6 months 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 only applies if you and your ex apply together for a divorce petition. This is not possible in all countries.

Part 2 - How to decide which country to divorce in (if you can choose between two or more countries)

The law on divorce varies a lot from country to country. Where you divorce can have an impact on a number of very important things, such as:

  • the types of financial orders the court is likely to make in your favour,
  • the costs involved,
  • the length of time it takes to get divorced and settle finances and arrangements for your children (if you have any),
  • how you sort out arrangements for your children,
  • how easy it is to enforce orders made by the court, in that country or another country.

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 the way their court deals with divorce cases. It may be more expensive or take a lot longer to get divorced in one country than in another. So, if you have a choice of countries when it comes to starting your divorce it is important to work out which country will bring you the best outcome.

You also need to think about if it is practical for you to get a divorce in a different country. Divorce is often 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 considering applying for a divorce in, if you speak the language, and the costs of divorcing overseas.

It is important that you speak to an international family law solicitor or a lawyer in each of the countries you might want to divorce in, before you apply for a divorce to get an idea of how much divorcing abroad will cost, and if it would really benefit you to get a divorce there.

You can search for a family law solicitor that specialises in international divorce by going to the Resolution website, and selecting ‘European and International law’ in the accreditation box on the advanced search page. You can also go to the Law Society website ‘Find a solicitor’ page and use the ‘Pro search’. Go to the ‘Area of practice’ box and choose ‘Family – divorce and separation’.

Firms that specialise in international divorce law sometimes have offices in other countries so their colleagues can help you. If they don’t have offices in other countries they will have good contacts with lawyers in different countries that specialise in this. They will then put you in contact with the right lawyer to help you.

The European Union (except Denmark)

You may be able to show that you or your ex has a connection to more than one country within the European Union, so that there is a choice as to where you get divorced in the EU. Rules in the EU say that the country that receives an application to start a divorce case first will be the only country with the power and right to deal with the divorce.

This means that speed is very important when you are thinking about starting a divorce in another European country. If you think that getting a divorce in one EU country would benefit you more than getting one elsewhere, or if you think that your ex might apply for a divorce somewhere else you need to get specialist advice as soon as you possibly can!

Countries outside of the European Union

If there is more than one country that you can divorce in outside the European Union, it does not matter which court receives the divorce application first. Instead, the court will usually decide if you have a strong enough connection to the country that you are applying to divorce in and as long as your ex agrees the divorce will continue in that country. If however, your ex does not agree, the court will have to determine where the divorce should continue. The law calls this a ‘forum dispute’. Forum disputes are often very lengthy and can cost huge amounts of money. So, it is important to get specialist advice on this before you start your divorce case. You will need to pay some money to get reliable advice from a specialist but if you don’t, you could end up in a complicated and very expensive dispute about which court should deal with your divorce.

What does it mean?

Domicile - the legal test for working out the country where you have your permanent home. For some people this is straightforward to work out but for others it can be more complicated.

Habitual Residence - the legal test for where you normally live. For most people this is quite straightforward but for some it can be more complicated.

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

Jurisdiction - the right and legal power of a court to deal with your case.

Nationality - to be a national means you have the official right to be a member of a nation state. You can acquire nationality by birth, the nationality of your parents, adoption, or marriage (the rules vary from country to country).

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