Please note – In this Help Guide the term ‘UK’ refers to England and Wales only.

Welcome to our Help Guide for International divorce. This Help Guide will give you a basic understanding of what international divorce is and how to navigate it.

Before we begin our write up we would like to give you an explanation of 5 words/phrases/terms which you will come across as you explore the world of international divorce.

1 – WHAT IS AN EXPAT?

Expat is short for expatriate.

An expat is an individual who lives in a different country than where they are a citizen. In some cases, an expat is the term given to an individual who relinquishes their citizenship of their native country and becomes a citizen of another country.

EXAMPLE – A British citizen living and working in Spain/Hong Kong will be referred to as an expat.

2 – WHAT DOES THE TERM ‘TO BE DOMICILED’ MEAN?

The term ‘to be domiciled’ refers to the country where your permanent home is or where you intend to return. You are a permanent resident in that country.

EXAMPLE – An individual with a British passport whose main home is in the UK where they will eventually return to is domiciled in the UK.

3 – WHAT DOES THE TERM ‘HABITUAL RESIDENCE’ MEAN?

The term habitual residence refers to where you live, work and your children go to school.

EXAMPLE – An individual with a British passport whose main home is in the UK but lives and works in Spain is habitually resident in Spain. Their life is based in Spain.

4 – WHAT DOES THE TERM ‘THE COURTS JURISDICTION’ MEAN?

This term means does the court that will deal with your case have the legal right to hear and make decisions about your case.

EXAMPLE – A British couple living in Spain cannot get divorced in a court in California USA. The Californian court does not have the jurisdiction to deal with their case unless they fulfil the country’s criteria to make a divorce application.

5 – WHAT DOES THE TERM ‘A PERSON’S NATIONALITY’ MEAN?

An individual’s passport will show their nationality. Nationality refers to the country where you legally belong. You can acquire a nationality by birth, adoption, marriage or through the nationality of your parents.

EXAMPLE – If you have a British passport then you are a legal national/citizen of the county of the United Kingdom.

CAN YOU BE HABITUALLY RESIDENT AND DOMICILED IN THE SAME COUNTRY?

Yes you can. If you were born in the UK, have a British passport, live here, and intend to stay here, then you are habitually resident and domiciled in the UK.

WHAT IS AN INTERNATIONAL DIVORCE?

International divorce is the term used to refer to the divorce of an individual that has been started/applied for in a different county other than the one they are citizen of/domiciled or where they are habitually resident.

There are many reasons why an individual could have an international divorce. A few are –

• Their spouse is the citizen of another country other than their own.
• Both spouses could be living in different countries.
• One spouse may be working and living in another country.
• An individual may have dual nationality.

GENERALLY WHAT CRITERIA DO YOU NEED TO FULFIL TO DIVORCE IN A PARTICULAR COUNTRY?

Generally you can divorce –

• In the country where you are a passport holder/citizen/national. Your permanent home is in the UK. You are domiciled here.
• In the country your spouse is a passport holder/citizen/national. Their permanent home is in that country. They are domiciled there.
• In the country where you are a habitual resident – you live and work.
• In the country where your spouse is a habitual resident – they live and work.
• Depending upon the complexities of the law and your individual case you may be able to divorce in a country where you have a connection.
• In the country you were married in if the law of that country permits.

ONCE YOU FULFIL THE CRITERIA, WHAT SHOULD YOU TAKE INTO CONSIDERATION WHEN CHOOSING THE COUNTRY YOU WISH TO DIVORCE IN?

Before you decide the country you should divorce in, it is wise to do some research and get an overview of whether the country will give you the best outcome as the laws are different in each country.

When choosing a country to divorce in you must take the following into consideration –

• Will the country allow you to conduct your divorce as a litigant in person?
• Do the courts in that country treat males and females equally? 
• Religious laws of the country and will they affect you?
• Does the country recognise a civil partnership if this applies to you?
• Does the country legally recognise your marriage?
• Do the courts in the country have the jurisdiction to deal with your divorce?
• What are the divorce tax laws in that country and how will they affect you and your ex-partner when you transfer or sell assets?
• Are there any other tax issues that could affect you?
• What are the costs involved in divorcing in that country?
• Is there corruption in the courts in that country?
• How easy is it to enforce a court order?
• How much time do divorces generally take in that country?
• How much emotional support do you have in that country from family and friends to help you through the divorce?
• Is the divorce conducted in that country recognised in the UK?
• Does the country recognise pre and post nuptial agreements?
• The welfare of the children and where they are based.

WHAT ARE THE CRITERIA THAT YOU MUST FULFIL IF YOU WANT TO DIVORCE IN THE UK?

As of July 2022 you must fulfil one of the criteria listed below to be able to start divorce proceedings in the UK (England and Wales). These criteria were taken from page 12 section 5 of form D8 (the application form to start divorce proceedings in a UK court)  – 

• Both you and your ex-partner are habitually resident in the UK.
• Both you and your ex-partner were last habitually resident in the UK and one of you continues to
  reside in the UK.
• The respondent in the divorce is habitually resident in the UK.
• The divorce application is a joint application and either applicant 1 or applicant 2 is habitually resident in the UK.
• The applicant in the divorce is habitually resident in the UK and has resided in the UK for at least one year immediately before divorce proceedings were started.
• The applicant is domiciled and habitually resident in the UK and has resided there for at least six months immediately before divorce proceedings were started.
• Both you and your ex-partner are domiciled in the UK or only applicant/applicant 1 or applicant 2 or the respondent is domiciled in the UK. 

WHY WOULD A BRITISH EXPAT PREFER TO DIVORCE IN THE UK?

There are many reasons for this. Some are – 

• The British legal system will be familiar to a British expat and thus more suitable for divorce. 
• The divorce will be conducted in English.
• Enforcement of court decisions is taken seriously.
• There is no corruption in the British courts.
• Your divorce case will be handled in an efficient manner.
• The financially weaker spouse will be catered for by the British family courts.

WHAT IS RESIDUAL JURISDICTION?

This is the term used when an individual applies for a divorce in the UK based solely on their domicile status in the UK. If this is the case financial claims and settlement are limited. 

SHOULD YOU GET INHERITANCE, CAPITAL GAINS AND DIVORCE TAX ADVISE BEFORE YOU DECIDE WHERE TO DIVORCE?

Yes, you should. Once you have legally stated where you are habitually resident and/or domiciled then this information could have an impact on future taxes such as inheritance tax.

IF YOU DIVORCE IN A FOREIGN COUNTRY OTHER THAN THE UK – DOES THERE HAVE TO BE COURT PROCEEDINGS AND NOTICE GIVEN TO BOTH PARTIES FOR THE UK TO RECOGNISE THE DIVORCE?

The answer to this question is yes. If you have divorced abroad but cannot prove there was state/official involvement such as legal proceedings, court documents, court orders and notices (especially to the respondent spouse) issued then the UK more than likely will not recognise your divorce.

Decisions made by sharia and religious councils and courts do not qualify for recognition in the UK.

WHAT IS A TRANSNATIONAL DIVORCE?

This is when a divorce is started in one country and is finished in another. The UK does not recognise this divorce. The UK only recognises a divorce that starts and finishes in the same country.

WHAT IS A LIMPING MARRIAGE?

This is a divorce which is recognised in some countries but not in others.

IF YOUR EX-PARTNER STARTS DIVORCE PROCEEDINGS IN ANOTHER COUNTRY CAN YOU START DIVORCE PROCEEDINGS IN THE UK?

No you cannot.

WHAT IS REMO?

REMO is short for reciprocal enforcement of maintenance orders. This is where a child maintenance court order issued in the UK can be enforced in another country that is also a REMO country. There are 100 countries that make up REMO countries. 

There is an international agreement between the UK and all other REMO countries that they will help enforce child maintenance court orders that have been issued in the UK.

LINK TO GOVERNMENT LIST OF REMO COUNTRIES WITH WHICH UK HAVE AN AGREEMENT

If you have a child maintenance court order, the paying parent lives abroad in a REMO country and is not paying then you can do the following if you want them to pay.

• Contact your local Maintenance Enforcement Business Centre. There are 3 in the UK (Greater London, Wales and England excluding Greater London)

LINK TO GOVERNMENT WEBPAGE FOR CONTACT DETAILS OF YOUR LOCAL MAINTENANCE ENFORCEMENT BUSINESS CENTRE

• Once you have contacted them they will send you an application form and guidance notes on how to complete the form. Depending upon your circumstances there may be a fee to pay and you may have to attend a court hearing.
• You must attach any supporting documents you may have to support your application to your application.
• The maintenance enforcement business centre will send your full application to the local court in the country where the paying parent lives. 
• This court will assess your case and if required enforce the original child maintenance court order.

If you have a child maintenance court order, you live abroad in a REMO country and the paying parent lives in the UK then you can contact your local court where you live to ask for details on how to enforce the court order.

CAN YOU RELOCATE YOUR CHILD ABROAD (OUTSIDE THE UK) DURING OR AFTER YOUR DIVORCE.

If your child is below 16 years of age then you cannot take your child abroad unless you have the permission of the other parent or a court order saying that you can.

If the other parent has not given their permission then you will need to make an application to the family court to relocate your child abroad. The court will see if it is in the best interest of the child. The form you will need to make this application in the UK family courts is form C100. You are using form C100 to apply for a specific issues order (asking the court to give permission to relocate the child abroad).

LINK TO OUR L.I.P HELP GUIDE FOR FORM C100

WHAT CAN YOU DO IF YOUR CHILD IS BEING RELOCATED ABROAD (OIUTSIDE THE UK) WITHOUT YOUR CONSENT OR A COURT ORDER GIVING PERMISSION.

It is always best to talk and communicate with the other parent first and try to reach an agreement. If you cannot then you can make an application to the court to stop the relocation. The application form you will need to make this application is form C100. You are using form C100 to apply for a prohibited steps order (to prevent the relocation).

LINK TO OUR L.I.P HELP GUIDE FOR FORM C100

Please note – The primary carer of your child can take your child outside of the UK for less than a month without your consent. Although this is a separate issue please do not confuse them both.

WHAT CAN YOU DO IF YOUR CHILD HAS ALREADY BEEN TAKEN ABROAD WITHOUT YOUR CONSENT AND WITHOUT THE PERMISSION OF THE COURT?

This is called abduction and is very serious. 

If you feel your child has been abducted please contact the police and make an application to the court. The form you will need is form C67. Abduction is discussed in detail in our website I AM L.I.P Education and Child Matters. Here we will give you the link to form C67.

LINK TO GOVERNMENT WEBSITE FOR FORM C67