In order for a divorce to be granted in the UK, it must be validly brought under UK jurisdiction. Broadly speaking if a foreign national is UK resident they can apply for a divorce under the UK jurisdiction. The European Union (‘EU’) has developed a set of criterion, which govern divorce jurisdictions (including the UK).
The spouse/s applying for the divorce must satisfy one of the following criteria in order to apply for a divorce under a particular jurisdiction:
- Both spouses are resident in the EU country
- Both spouses were resident in the EU country, but now only one of resides there
- The applicant for the divorce is currently resident in the EU country and has been for the last year
- The applicant for the divorce is a national of the EU country and has resided there for the last 6 months
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How do I get divorced if we were married abroad?
It does not matter if you and your spouse were married abroad, and the main practical problem is using a translator for the marriage certificate.
However, if you want to be divorced in the UK, irrelevant of what nationality you or your spouse is, UK law would apply in its entirety. It may be worth bearing in mind that you or your spouse may be entitled to be divorced elsewhere, if so, there are different advantages and disadvantages to divorce in different countries.
Get specialist legal advice as soon as possible
It is crucial that you seek legal advice at the earliest opportunity if the option of divorce through another jurisdiction is available to you. In the European Union once the family proceedings have begun, you are then tied to completing your divorce in that country, even if you can show that you have a closer connection to another country.
If considering divorce in a non-EU country then the connections have to be strong and arguable, these types of applications can turn on minor discretionary matters and are often fairly complex.
How do I decide which jurisdiction is best for me?
The following are some factors to consider in deciding what jurisdiction to use for your divorce:
- The grounds upon which divorce is awarded
- The amount awarded through financial orders and what form the order takes
- The court’s power of disclosure and method of enforcement (for example if you wish for your spouse to disclose all of his/her assets)
- Can the foreign jurisdiction rule over assets held within another jurisdiction
- Variation in the type of orders given to deal with children
- The stress and strain of costs and travel
- Delays in the process
Experienced divorce solicitors will not only be able to advise you on whether you qualify for divorce in the UK, but also if there are any other jurisdictions legally open to you and what the advantages/disadvantages would be of taking your divorce there.
Moving abroad with your children after separation or divorce
When couples of different nationalities with children decide to separate or divorce, difficulties inevitably arise when one parent wishes to return to their country of birth or relocate abroad and take the children with them. Even if you have a residence order in your favour, you still need to get the permission of your ex-spouse or partner before you can take the children out of England or Wales for any period over a month. If they refuse permission, you will need to make an application to the Court for permission.
Under UK children law, each parent retains parental responsibility for the children post-divorce and it is probably advisable to try to reach a mutually beneficial solution – in extreme cases, the court may even decide to take evidence from the children themselves.
The Children Act makes it clear that when considering any decision about children, the children’s welfare must be given “paramount concern “by the court – and there is greater emphasis on continuing to spend frequent and regular time with both parents, even if that results in one of the parents being unable to return to their country of birth or pursue international career opportunities elsewhere.
If you are in this situation, or you maybe feel your ex partner may attempt to take your children abroad without your permission, you must seek immediate legal advice to see what steps you need to take.
Will UK courts recognise my overseas marriage or divorce?
English and Welsh courts, unlike many courts overseas customarily acknowledge overseas marriages. In order for it to be recognised as lawful, there are certain requirements though:
• The marriage must have met with the laws governing the country in which it was carried out
• Each spouse must have met the legal requirements for marriage set by their country of domicile prior to the marriage
• UK authorities may need to see the original marriage certificate or a copy of it approved by lawyer (certified translated copies may also be required)
If a divorce is granted by a UK court, all of the countries within the UK will recognise the divorce. Similarly, divorces granted in a member state of the European Union will be recognised by all EU member states except on vary rare occasions.
Divorces granted in countries outside the EU are less straightforward. Those which followed divorce proceedings in accordance with local law will be recognised in the vast majority of cases.
However, if the legal process was not used, as is often the case with religious divorces such as ‘talaqs’, the UK courts are likely to look upon them cautiously.
Sometimes, such divorces do not fit with UK norms and conventions by not giving the wife prior notice of the divorce for example and UK courts are often reluctant to legitimise them as a result.
There are various complications when it comes to multi-jurisdiction divorce cases, which is why having the expert advice of a specialist family law solicitor is so importance. Our family law team, headed by an experienced Deputy District Judge who continues to set in court as well as acting a solicitor, have all the experience you need.