Where a couple decide to live abroad, separation and divorce are probably the last things on their minds. However they are an important consideration for the following reasons:-
• If neither party was born in England but one spouse wishes to file for divorce in the English courts, that spouse must live in England for at least one year prior to petitioning for divorce
• A party who was born in England can petition for divorce in the English courts but they must live in England for at least 6 months prior to petitioning for divorce
These “waiting periods” are likely to cause frustration to a spouse who has relocated or returned to the UK from abroad and wishes to petition for divorce as soon as possible after separation from their spouse. It is also worth remembering that if your other half remains living abroad he/she may petition for divorce under the jurisdiction of the foreign country before you get the chance to do so in the UK!
What happens if you petition for divorce in a foreign country before returning to the UK?
The recognition of a foreign divorce in England is important for the following reasons:
1. A party cannot remarry in England if the foreign divorced is not recognised. In these circumstances any remarriage may be declared invalid.
2. A divorce which is not recognised in England can also affect a party’s entitlement to claim welfare benefits upon their return to the UK and can affect claims under the laws of probate.
3. The local law of the divorce may prevent remarriage for a certain period. Remarriage within this period may prevent the marriage being recognised or even being declared invalid.
4. If the divorce is recognised in England a party cannot make a claim for financial provision in the English Courts unless he/she has:
• taken a good part of the foreign proceedings,
• used local remedies and
• done his/her best to seek reasonable financial provision where the divorce had taken place.
• received no, or no adequate, financial provision in the country in which he/she was divorced.
So, if you get divorced abroad you must seek financial remedy in that country first and can only look to the English courts for a remedy in the above circumstances. This can result in financial claims becoming a much longer, drawn out, affair.
Applications to the English courts in such circumstances cannot be used to simply “top up” the financial provision awarded by the foreign courts. This is an especially important consideration for those who have been divorced in an EU country where financial relief has been awarded, as there is a general perception that it is not possible to seek an order for maintenance in the English Courts when there is already an EU maintenance divorce settlement.
Guest article by Joanne Major of Major Family Law, the Divorce and Family Law Specialists.