Overseas

The jurisdiction to grant a divorce in England or Wales depends upon whether at least one of the parties to the marriage has sufficient connection with the country. Scotland is a separate legal jurisdiction and so the question in this particular case is whether one of the parties to the marriage has sufficient connection with England or Wales. The two latter countries form one legal jurisdiction within the United Kingdom and Scotland forms quite another.

People very often imagine that they need to be in the country to obtain a divorce. That is not the case. In the great majority of cases neither party needs attend court in order to be able to obtain a divorce and so it is perfectly feasible for a divorce to be obtained in England despite the fact that both parties currently live overseas. For instance, two British nationals who were married in England but who happen at the moment to be working in, say, Hong Kong can obtain a divorce in England because both are almost certainly still "domiciled" in England although they may happen to be working temporarily in Hong Kong (or anywhere else). And they need not come to England to get the divorce. It can be done at a distance.

The English courts have jurisdiction to grant a divorce if either party

	(a) is domiciled in England and Wales when the proceedings are begun, or
	(b) was habitually resident in England and Wales throughout the period of one year ending with the date on which proceedings are begun.

The latter condition means that anyone in the world of whatever nationality and wherever they were married can obtain a divorce in England so long as they have been habitually resident here for a year immediately prior to the issue of the divorce petition. In practice this doesn't cause much difficulty because most people expect to be able to obtain a divorce in the country where they are habitually resident and after a year most people would regard themselves as habitually resident here.

What is more significant is paragraph (a) because "domiciled" is not the same as "resident" and is much wider. This is what enables many people resident overseas to obtain a divorce here although they do not actually live here at the moment. Naturally, one must have sufficient connection with the country to establish the necessary domicile but it is important to understand that one does not have to actually be in England in order to obtain a divorce here.

The most obvious category of people who have an English domicile (and who are thus able to obtain a divorce in England) are those who are working for the time being overseas and this can apply to either or both partners. It is only the person who files the divorce petition who needs to be "domiciled" here (or habitually resident for one year immediately prior to the issue of the petition). The person receiving the petition can be of any nationality, habitually resident anywhere or domiciled anywhere.

And one can live overseas for a very long time without necessarily losing one's English domicile. This is because one can live overseas with the express intention of returning to England at some time in the future. If that is the case one's English domicile is not lost because one happens to be overseas. In fact, intention plays a very important role in deciding where one has one's domicile and it is quite difficult to prove a person's intention one way or the other. In practice, if one is British and was married here it is quite easy to petition for divorce here although one happens to be living overseas.

femtalk is for you