Divorce Jurisdiction23 Mar 2023 | Sarah Norman-Scott
Is England/Wales the Right Jurisdiction for Your Divorce?
When it comes to getting divorced, London has a lot of attraction for individuals coming from overseas, where it is often referred to as the “divorce capital of the world” because judges here have more discretion than in other countries and settlements tend to be more favourable to the financially weaker party. But what are the conditions that make it possible for a couple to get divorced in England, and why might you opt for an English divorce when you have a choice of jurisdiction?
What is jurisdiction and why is it important?
Individuals with links to more than one country often have the option of choosing which one to pursue divorce proceedings in. This is known as the “forum” or “jurisdiction” of the divorce. Since each country has its own divorce laws, the choice of forum can have a tremendous effect on how long the divorce takes and what assets each party walks away with at the end.
Because it is so important, jurisdiction is the first thing we consider when a new client comes to us. This is to ensure that:
- They have the right to get divorced in England and Wales, and
- England and Wales is the right place for them to get divorced when there are multiple jurisdictions at play.
Who can get divorced in England/Wales?
Regardless of your nationality and where you got married, you can apply for a divorce in England and Wales if at least one of the conditions is satisfied:
- Both spouses are habitual residents of England and Wales.
- Both of you were habitual residents as a couple here, and one of you still lives here.
- You want to start a divorce and your spouse is habitually resident in England and Wales.
- You want to start a divorce and you have lived in England and Wales for at least 12 months.
- You want to start a divorce and you have lived here for 6 months, and are also domiciled here.
- Both spouses are domiciled in England and Wales.
“Domicile” is a technical legal term. Broadly, your domicile is the place you consider home and to which you have the intention of returning. Everyone has a domicile of origin – the country in which your father was domiciled when you were born. For example, if you were born in Saudi Arabia but your father was domiciled in England, then your domicile of origin would be England. However, it’s possible to change your domicile by permanently moving to another country and severing all ties with your domicile of origin. This is called domicile of choice.
“Habitual residence” is less complicated; it’s simply where you are living at the time that your divorce proceedings start. For couples with a global footprint, the court will look at where your “centre of interests” are when deciding where you live most regularly, such as where you have community ties and where your children go to school.
Why might you choose to get divorced in England/Wales?
A number of factors have helped London gain its “divorce capital” title. These include:
- A well-defined legal system that attempts to resolve issues in a non-confrontational way.
- No-fault divorce rules, which means it is not necessary to establish the grounds for divorce.
- Decisions regarding the division of finances are based on fairness and equity, and the court favours the financially weaker party by taking a 50/50 split of assets as its starting point – homemakers and breadwinners are treated equally.
- There is no assumption that spousal maintenance will not be paid or will only be paid for a short duration.
- Pre-nuptial agreements are more likely to be recognised by English/Welsh courts than in some other jurisdictions.
- Pre-acquired assets are not automatically ringfenced in the England/Wales
- It is often quicker to get divorced in England/Wales than in other countries, although this will depend on the complexity of the case.
All assets are on the table in an English divorce, not just the assets you acquired during the marriage. Parties are required to make full and frank disclosure of all of their worldwide assets, and the courts have wide discretion to re-distribute those assets to achieve a fair outcome. For example, they might order the transfer of property anywhere in the world, the sharing of a pension, or the payment of monthly maintenance payments potentially up until the death of either party.
Other countries may take a very different – and potentially less generous – view when dividing assets, pensions and investments and making spousal maintenance awards. The jurisdiction that is secured can mean a dramatically different divorce settlement.
Choose well and choose quickly
Once you file for divorce, the choice of jurisdiction becomes set in stone. It’s critical to get the right advice as soon as possible; otherwise, you might lose the race to select the most advantageous jurisdiction. Since Brexit, the application first issued no longer takes priority however timing is still important and can make up part of which jurisdiction is most appropriate.
The best advice is to speak to a solicitor as soon as you can. They can determine if you are eligible for a divorce based in England and Wales and whether it’s the right forum for you. The decision not only is based on the potential value of the settlement but also on other factors such as how difficult it will be to locate, transfer or sell assets that are located overseas. It can be costly and time-consuming to enforce an English divorce settlement through a foreign court – a solicitor can provide the necessary guidance.
Share this article
Sarah Norman-Scott Associate Solicitor
Contact us today
For a free initial conversation call 020 7485 8811
Email us Send us an email and we’ll get back to you
Related InsightsVIEW ALL
Is England/Wales the Right Jurisdiction for Your Divorce? When it comes to getting divorced, London has a lot of...Read more
Does it matter if you’re a breadwinner...
When it comes to deciding how wealth is split, English courts do not discriminate based on your role within the...Read more
Understanding Parental Responsibility Parental responsibility is the legal term used to describe the duties and responsibilities that parents have for...Read more
Are trusts protected from divorce?
Can trusts protect an inheritance from your spouse? A trust is a separate legal entity. Neither spouse owns its assets. ...Read more
Is a limited company protected from divorce?
Is my spouse entitled to half of my business? If you are involved in running a limited company, then it...Read more
How is a pension split in a divorce?
Pensions and Divorce In a divorce, pensions are taken into account together with all other financial assets. Once all assets...Read more
Who gets the house in a divorce?
How is a house divided in a UK divorce? For most people contemplating divorce, one of the main concerns will...Read more
Judge ignores pre-nuptial agreement but factors in non-matrimonial...
Case Law One of the reasons I am still passionate about family law, after 20 years in the field, is that...Read more
How to set aside an order in financial...
My ex-spouse didn’t tell the truth about their finances when we divorced, can anything be done? Can the financial...Read more
Pension sharing on divorce
What is the new procedure for pension sharing? Pensions are one of the biggest assets of a marriage, yet many...Read more
What is a transfer of equity?
Transfer of equity in divorce Transfer of equity refers to the process of transferring part or all of a property...Read more
Do You Have To Go To Court For...
If your divorce is uncontested and there are no disputes over issues such as what happens to the marital home...Read more
Capital Gains Tax on Divorce
Proposed Capital Gains Tax Rule Changes Could Reduce Stress for Divorcing Couples The government has proposed a number of changes...Read more
My ex has cut me off during divorce
Can my spouse cut me off financially? Unfortunately, it is far too common that when a client says it’s...Read more
How the Court views loans from parents during divorce A frequent issue in financial divorce cases is a loan from...Read more
Mesher Orders Explained
What is a Mesher order? A Mesher Order allows the sale of the family home to be postponed in a...Read more
Private Financial Dispute Resolution (FDR) for Divorce
Private FDR helps divorcing couples reach a financial settlement Our specialist divorce lawyers are keen to ensure our divorcing clients...Read more
10 Interesting Facts About Same Sex Marriage and Divorce
Eight years after same-sex marriage was written into law, we’re taking a look at these major life events by...Read more
In England and Wales, there are three key stages to the divorce process: The Divorce Petition The Decree Nisi The...Read more
6 cases that shape a private children dispute
Family disputes involving children can be particularly emotive, which is why our expert children lawyers work tirelessly to understand how...Read more
Are irreconcilable differences grounds for divorce?
If you have come across this article it may have been as a result of an online search to see...Read more
Negotiating financial settlements in divorce
Costly and acrimonious divorces: a lesson in what not to do If you’re determined to pursue your financial claims...Read more
Uncovering hidden assets in your divorce
Hiding Assets During a Divorce As part of your divorce, you and your ex will have to agree on how...Read more
Difference between Decree Nisi and Decree Absolute
The divorce process will, for many people, mean an introduction to some new terminology. Two of the most important terms...Read more