Can English expats divorce in England?
The English Family Court is known for making more generous financial orders on divorce than many other jurisdictions. For that reason, many English expats seeking financial provision on divorce are keen to have their divorce proceedings take place in England (and expats defending such claims are often keen to avoid this).
The circumstances in which the Family Court in England is able to hear a case brought by an English expat, and which aspects of the case it will be able to rule on, have been significantly impacted by Brexit.
Since the end of the transition period on 31 December 2020, the requirements for initiating divorce proceedings in England have been relaxed. It is now possible to apply for divorce in England, and have all financial claims determined by the English courts, on the basis that either you or your spouse is “domiciled” in England and Wales – even if the other is not and even if neither of you live there.
The law on domicile is not straightforward, but broadly speaking a person is domiciled in the place where they consider their permanent home to be, even if they have not lived there for some time. A person can only have one domicile, and it will only change if they move country and intend to remain there permanently or indefinitely. This means that many English expats remain domiciled in England.
Previously the domicile of one party was insufficient to enable the English courts to hear the case if there was a closer connection with an EU state. Even if that was not the case, and the divorce proceedings could take place in England based on one party’s domicile, the court could not deal with “maintenance” aspects of the financial claim – it would be restricted to dealing with the sharing of marital assets and unable to make additional provision for the applicant’s needs, either by way of a capital sum or ongoing maintenance payments. This often undermined the benefits of bringing divorce proceedings in England.
Since 1 January 2021, anyone who is domiciled in England, or whose spouse is domiciled in England, can bring divorce proceedings here, irrespective of their connections with other countries, and can then have all aspects of the financial arrangements determined by the English court.
However, there are some complications. Firstly, starting divorce proceedings in England does not guarantee the case will continue here if the parties have a close connection with another country. If the other spouse issues divorce proceedings in a different country, the English court will decide whether to hear the case based on the principle of “forum conveniens”. The court will consider in which jurisdiction it is more appropriate for the case to be heard taking into account the parties’ connections with each of the competing jurisdictions.
Issues of enforcement must also be considered. Obtaining an English order may be a pyrrhic victory if most of the parties’ assets are in a jurisdiction which will not enforce an English order. A particular issue is that the relevant international convention, the 2007 Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance, may not cover orders made within a divorce case proceeding in England on the basis of one party’s domicile. Much will depend on the law of the jurisdiction where the assets are located.
It’s also important to note that some foreign jurisdictions will not recognise as valid a divorce made in England on the basis of one party’s domicile.
Whether divorce proceedings and the consequential financial claims can be – and if so should be – brought in England remains complex following the end of the Brexit transition period. However, there is now more flexibility and opportunity to have cases heard here, and early specialist advice is essential.
For advice on any of the issues raised please contact Henry Hood on 020 7412 0050 or Henry.Hood@hunterslaw.com.
