Issuing Proceedings in England and Wales

The consequences of where divorce proceedings are issued can be very significant indeed as each country has different laws as to divorce, and particularly what is to happen to the family assets following divorce.  England is often seen as a very favourable place for divorce proceedings to be issued by a wife since, speaking in very general terms and in relation to a traditional family set-up, the contributions made through caring for children in a marriage are likely to be seen as equal to the financial contributions generated through a husband’s income.  This may not be the case in other countries, where the person who has contributed more financially to the marriage and in whose name the assets are held, often the husband, may stand a greater chance of retaining such assets.

In view of this, when is it possible to issue divorce proceedings in England?  We are often approached by those living abroad to ascertain whether proceedings can be issued here, regardless of whether there is a connection to the country.  The position can be summarised as follows:

You are able to issue proceedings within a European Union country, including England, where:-

  • the husband and wife are habitually resident; or
  • they were last habitually resident and one of them still resides there; or
  • the respondent on the divorce is habitually resident; or
  • the person bringing the proceedings (the petitioner) has been habitually resident for at least one year immediately before the proceedings are issued; or
  • the petitioner has been habitually resident for 6 months and is a national of/domiciled in that country; or
  • the domicile of both spouses (UK) or their nationality (elsewhere)

In the event that you have been based as a family outside the EU, for example, in Asia, you would only be able to issue divorce proceedings in England in the following circumstances:

i)  if both you and your spouse are domiciled in England or Wales.  Domicile can be established through where you were born (origin) but can then be superseded by domicile of choice (ie choosing to move permanently to another country).  If you are only residing in another country as a result of a temporary work contract and it is the intention of both you and your spouse to return to this country, you may be able to establish that you have retained domicile here.

ii) if none of the above circumstances apply, if you are habitually resident here.  This would essentially require you to demonstrate that you now live in England.

It can therefore be seen that it may not simply be possible, if you have been living abroad, to return to England and issue proceedings immediately here.  On the other hand, it may be possible to issue proceedings in more than one country.  Where this is the case in the EU, the country in which the proceedings are issued first will be the country in which the proceedings will continue.  It is therefore imperative that early legal advice is sought as you could otherwise find yourself in a situation where you are unable to take advantage of financial remedies which may benefit you.  At Stone King, we have the expertise to be able to advise you in this regard.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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