At Lovell Chohan Solicitors we have considerable experience in dealing with International divorce. International divorce is usually an application for divorce in a country other than where the parties are living or where their permanent home is.
It is not essential for a divorce to take place in the country that you were married in or in a country where you were living when your marriage broke down. Parties are able to divorce in any country in which they are either now settled, providing that country recognises the fact you have a valid marriage in the 1st place. It is often the case that parties will find that several countries have the power to deal with their divorce.
Choosing a country in which you wish to divorce in will need to have ‘jurisdiction’, in other words it will need to have the right and power to deal with your divorce. The rules on jurisdiction are complicated and will depend on whether you are applying for a divorce within or outside the European Union.
If you are getting divorced in a foreign jurisdiction there are several factors to be considered:
In order to divorce in a foreign jurisdiction, you will need to prove that either you or your partner has some connection or link with the country of choice in which you propose to divorce. A divorce court a foreign jurisdiction will only have power to deal with the divorce case if such a link can be established, and this may include nationality, habitual residence or domicile.
Art 3(1) of Brussels II revised provides:
In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of
the Member State
(a) In whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one
- of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses
- is habitually resident, or
- the applicant is habitually resident if he or she resided
- there for at least a year immediately before the
- application was made, or
- the applicant is habitually resident if he or she resided
- there for at least six months immediately before the
- application was made and is either a national of the
- Member State in question or, in the case of the United
- Kingdom and Ireland, has his or her ‘domicile' there;
(b) Of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile' of both spouses.
2. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.
Habitual residence is a concept of European law and is defined as: ‘a person’s habitual residence is the place where the person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors been taken into account’.
It therefore follows to establish habitual residence the parties will have to prove that they are settled in the country in which the divorce is to take place and or that they are planning to stay there for a period of time, and as such the factors that the court may take into account in determining whether habitual residence has been is established is likely to include the following:
- Where the parties live, their place of employment or study
- Where the parties are registered with a doctor, dentist, hospital and other professional agencies
- Whether any departure from a country is temporary or permanent
- Details of the registered names of any property owned by the parties and in the country in which it is owned
- Where the parties vehicles are registered
- The tax status of the parties
- Where the parties operate their bank accounts from
- The parties nationality
- The intention of the parties
The second limb of establishing jurisdiction is the concept of ‘domicile’. This is a complicated standard to attain then establishing residence. Whereas establishing residence requires one of the parties to be present in a particular country, domicile requires one of the parties to have a single permanent home in the jurisdiction way one is filing for divorce. Generally domicile is where your permanent home has been established. This can include a jurisdiction that you were born in or country to which you have moved to and made your permanent home.
The parties can only have one domicile at a time and this can consist of either domicile of origin or domicile of choice. Domicile of origin is the domicile which is acquired at birth and thus a party is able to establish domicile of origin in the country where they were born. On the other hand domicile of choice can occur where one of the parties lives in a different jurisdiction from the domicile of origin and the party has the intention to make that new country his or her permanent home.
To establish domicile the court will look at the following factors:
- Where a party lives or works
- Where the spouse vote
- which country issued the spouses drivers licence
- Where the spouse carries out his or her banking
- Where the parties children attend school
- Where the spouses the vehicle is registered
- Where the spouses extended family resides
- Where the spouse is employed
- Whether there has been departure out of the country and whether this was temporary
- Where the property is situated
- The spouses mail/emailing address
- The spouses nationality
The third limb in establishing jurisdiction for a divorce in a particular country deals with the concept of nationality. A party may only divorce in a country where the marriage is legally recognised. There are countries where same – sex couple marriages are not recognised and therefore if the parties were married in England and Wales they will not be able to obtain a divorce in a country which does not recognise same – sex couple marriages.
Establishing nationality is usually achieved by being a national of a country in which you were born or if you have moved to that particular country, established a permanent home and have a passport issued by that country. It is still possible to apply for a divorce in a country which recognises the marriage and of which the parties are nationals albeit they may be living elsewhere.
Forum shopping is the concept of deciding in which country to commence divorce proceedings. The law on divorce varies from country to country and the choice of country may determine factors such as the arrangements to be made for your children, if any, how the matrimonial assets are to be shared and whether divorcing in one country will be beneficial to a party rather than divorcing in another. Other considerations are the expense of divorce in that particular country and/or the length of time it will take to obtain the divorce. Deciding on which country to divorcing will depend on which will bring the best outcome for the party whether financially or in relation to the children.
At Lovell Chohan Solicitors we deal with worldwide enquiries on International divorce relating to dissolution of marriage, finance and children.