Divorce is never easy for anyone involved, however, things can become even more complicated when one partner is either living in or was born in a country outside of the United Kingdom.
Uncertainty over how the process of getting a divorce with an overseas partner works or confusion over whether it can be done at all could leave you feeling as if you have no choice but to remain married and in an unhappy relationship.
International divorce can be tricky as every country has its own individual stance on divorce, indeed in some countries, such as Malta, divorce was only introduced as late as 2011. However, as we will explain in this guide, the complexities of international (or ex-pat) divorce can be manageable in most cases.
Before you decide to go ahead with international divorce proceedings and recruit a specialist solicitor it is important to note that the courts will take into account the needs of your children and also any financial obligations that you may have. Therefore, there are certain questions that you will need to ask yourself.
First of all, is divorce the best option? Although some relationships can break down beyond repair and divorce becomes the only reasonable route out of unhappiness. However, there are occasions when a period of separation or marriage counselling can be useful in providing clarity and helping to heal rifts. This isn’t always the case and if divorce is the path you wish to take then you should seek the advice of a solicitor, and in this scenario, you should look for someone who has specific experience in international divorce cases.
You should also think about your financial position. At this time you should be gathering all the documents that you own which display your assets and your liabilities – such as bank statements, payslips, loans and pension details, etc. Having a clear understanding of your financial position and being able to demonstrate it successfully will help to make things simpler when it comes to splitting income and assets between you and your partner.
If you or your ex-partner (husband, wife, or civil partner) decides to start divorce or dissolution proceedings outside of the country you currently live in, what you do next will depend on whether they begin the process in another nation within the UK, elsewhere in the European Union (EU), or in a non-EU country.
Many couples will choose to get married abroad and there can be many different reasons for this. It might be that your family lives in a different country, you wish to have a low-key wedding away from home, or perhaps just wish to get married in a warmer climate.
Whatever the reason, if the marriage breaks down and you are seeking a divorce then you may have questions about the process considering you were married outside of the UK.
In the eyes of the law, it is unimportant that you were married abroad as long as one of the partners is still living in England or Wales and the marriage proceedings were valid in the country where the ceremony took place. If this is the case then a divorce will be able to be granted in the UK.
If your marriage certificate is in a foreign language then you may need to have it translated into English, which is something that an experienced solicitor will be able to handle for you. The certificate and translation are then served to the court along with your petition for divorce.
The way that divorce law works varies between different parts of the UK. The rules for England and Wales differ slightly from that of Scotland and Northern Ireland.
A major difference between divorce laws in Northern Ireland and their equivalent in England and Wales is that parties in Northern Ireland must have been married for at least 2 years before they can petition for a divorce. The grounds for divorce in Northern Ireland include long periods of separation, unreasonable behaviour, adultery, and desertion which are the same as in England and Wales.
A key difference between divorce in Scotland and divorce in the rest of the UK is the grounds for divorce in Scotland. In England and Wales, adultery, unreasonable behaviour, desertion, and long periods of separation are all accepted as grounds for divorce. However, in Scotland, there are only two accepted reasons: the irretrievable breakdown of a relationship or when a partner has chosen to adopt a new gender and live as a transgender person. Also, for a divorce to be granted in Scotland, at least one of the parties must be living there.
For divorcing couples in the EU, there are rules in place which determine where a divorce will be granted, and this is not always the country of residency.
In some countries, such as Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia, and Spain, couples may be able to choose which nation’s laws should apply to their divorce. However, they must have a connection to the country whose laws they wish to use. For example, a Bulgarian and Romanian couple living in France might ask to have the laws of Bulgaria apply to their divorce.
Generally, you will be able to file for divorce in the country where you and your husband or wife both live, the country where one of you is currently living, the country you most recently lived in, and where your spouse still resides.
If you are a national of an EU country then you must have lived there as a married couple for at least 6 months and if you are not a national, for a minimum of 12 months.
It is also worth noting that in the EU there is a ‘first in time’ system. In practice, this means that it is important to get your petition for divorce in before your spouse if you wish to choose which country your divorce takes place in, as the country where the petition is first served will be the one that is valid.
As with other areas of international divorce, the way that financial settlements are reached can also differ. Often, it can be beneficial to have the divorce take place through the English courts as financial settlements can often be reached more quickly and be awarded more generously.
In England and Wales, a divorce settlement is achieved by taking into account the following factors:
If you or your partner is living outside of England and Wales then the courts may take a different approach to dividing assets which could have a negative effect on the outcome. For example, in Scotland, only assets owned or gained during the marriage are recognised.
Although rising in popularity, pre-nuptial and post-nuptial agreements are not all that common in the UK. They can help to determine how spouses will divide their assets following the breakup of their marriage. It is important that you seek legal advice to see how much weight your agreement will hold because they may not be recognised or enforceable in some countries.
Another important consideration to factor into an international divorce case is children. If you and your partner decide to separate, then you may want to take your child back with you to your country of birth. However, it is critical that you contact a solicitor and seek their advice before you do this as, by removing them from the country, you could be breaking the law and committing the crime of abducting a child.
International divorce can be a complicated process to oversee and it is important that you seek the advice of a specialist international divorce lawyer if you are affected by any of the issues mentioned in this guide. Leaving it too late could mean that your spouse decides, and dependent on the laws of that country, this could have a detrimental effect on the result of your divorce.