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I Married Overseas, Can I Divorce in the UK?

10 February 2010

Alex Reid the winner of Celebrity Big Brother and Jordan recently married in Las Vegas. They are among a growing number of people deciding to get married overseas for a whole range of reasons. There is now a thriving business catering for people that marry abroad.

A question often asked is: 'whether a UK court has jurisdiction on the breakdown of a marriage celebrated abroad'.

Firstly we need to make sure that the marriage is recognised in the UK. The UK will recognise a marriage where:

  • The ceremony complies with the formalities of the country where it took place, even though it does not comply with the requirements of the UK.
  • Both parties have capacity to marry each other. This question is answered by looking at the law of the country where the parties are domiciled before the marriage. This may involve looking at the law of two different countries. If the law of one country denies the person the capacity to marry, the marriage will be invalid. The Courts may also look at the law of the country that the parties live in immediately following the marriage. If the parties have capacity in that country the marriage will be valid.

Once the marriage is recognised in this country the location of the ceremony is no longer important when deciding whether the courts in the UK have jurisdiction on divorce. What is important now is the domicile and habitual residence of the parties.

Domicile

This is something each of us acquires at birth. Our domicile, which is known as, domicile of origin, will be the same as our parents. It is possible to acquire a domicile of choice if you move to another country and make such strong ties there that you regard that country as home rather than the country of your domicile of origin. If your domicile of choice is lost (e.g. where a person leaves the country they have become domiciled in with no intention to return) they revert to their domicile of origin even if the person does not move back to the country of domicile of origin. So there will never be a time in a person’s life when they are without a domicile.

Habitual Residence

This is interpreted in different ways. For the purposes of divorce law we are interested in duration regularity conditions and reasons for stay. Put simply how long you live in a place and why. The English court will have jurisdiction where one of the following apply:

  • Both parties are habitually resident in England and Wales
  • The respondent is habitually resident in England and Wales
  • Both parties were last habitually resident in England and Wales and one of them continues to reside here.
  • The petitioner is habitually resident here and has been so residing for at least one year immediately preceding presentation of the petition
  • Where the petitioner is domiciled here and has been residing here for at least six months immediately preceding presentation of the petition.

It is worth remembering that if proceedings are issued in an EU country that has jurisdiction then that is an end to it and that country has jurisdiction, even if another EU country could also have jurisdiction.

If you are thinking of issuing divorce proceedings where there is a choice of jurisdictions it is important to take advice before issuing, as it may be to your advantage to choose one country over another. For example maintenance for ex spouses (usually wives) in the UK is more generous than France.

Whilst forum shopping do not forget that if the other party issues first (in an EU country) the choice of forum will be theirs. Different rules apply where the other country is not in the EU. If the choice of jurisdiction is important you should not delay and risk losing your advantage.

If you decide to issue in a different jurisdiction this leads to the interesting question of 'is the marriage valid in that jurisdiction?'

-Margaret Kelly, Seddons