Can I Get Divorced in the UK?

In the modern world many families who live in the United Kingdom have links to other countries, often more than one. This can lead to uncertainty as to whether it is possible for them to commence divorce proceedings in the United Kingdom.  

The first important matter to be aware of is that there is no such thing as “UK jurisdiction”. There are three separate jurisdictions within the United Kingdom – England and Wales, Scotland and Northern Ireland. Each jurisdiction has a distinct court system and a different set of rules. The information below applies to England and Wales only.  

Establishing Jurisdiction in England and Wales

A common misconception is that jurisdiction depends on the nationality of one or both parties or the location of their marriage. Neither of these factors are relevant to jurisdiction. 

In order to establish that you are able to get divorced in England and Wales you must fall within one of the following categories:-

• Both parties to the marriage are habitually resident in England and Wales
• Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
• The Respondent 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 6 months immediately before the application was made
• Both parties to the marriage are domiciled in England and Wales; or 
• Either of the parties to the marriage is domiciled in England and Wales

Your country of domicile is normally the country which you consider to be your permanent home. Habitual residence means the country where you normally live. However, both concepts can be legally complex and depend on a number of factors. Therefore, you should seek legal advice at an early stage. 

Competing Jurisdictions

Different countries have different rules with regard to jurisdiction. Therefore, if you have connections with more than one country, it is possible that more than one country will have jurisdiction to deal with your divorce.

What should I do if another country also has jurisdiction to deal with my divorce?

It is important to take early advice from a lawyer in any country which may have jurisdiction for your divorce as to how the courts of that country are likely to deal with your divorce.  You will then be able to make a decision as to whether it is better to proceed in England and Wales or in the foreign jurisdiction.  

What happens if I issue divorce proceedings in England and Wales and my spouse issues divorce proceedings in another jurisdiction?  

If there are divorce proceedings in competing jurisdictions, the approach of the English Court is that the proceedings should go ahead in the “forum conveniens” or most convenient jurisdiction. The factors which the court is likely to take into account when assessing which jurisdiction is the forum conveniens are as follows :-

• The parties’ nationalities and domicile 
• The location of their current family home 
• The location of their other assets 
• The history of where the parties have lived and worked during the marriage
• Cultural background 
• The parties’ command of the language of each country
• Where the children are based and educated 
• Where the parties extended families live 
• The comparative legal costs of divorce proceedings in each jurisdiction 
• Availability of witnesses and documents 
• Which proceedings were issued first and what stage has been reached in each set of proceedings
• Other links to each jurisdiction 

The proceedings in both countries should be stayed, pending the outcome of the dispute regarding forum. 

Each party will usually be given an opportunity to file a statement regarding their position with regard to forum and there will then be a hearing at which a Judge makes a decision.  

If you require advice regarding whether you are able to issue divorce proceedings in England and Wales and/or whether that would be advisable for you, please contact our Head of Family, Joanna Toloczko on 07756 288621 or at Joanna.Toloczko@bbslaw.co.uk.

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