Is a marriage abroad recognised by an English Court? 

To get divorced in the England and Wales, the marriage must be legally recognised by the Courts of England and Wales. The Court needs to be satisfied that the marriage was conducted in accordance with the laws of the country in which the marriage took place. In most cases, the marriage will be valid and recognised by the English and Welsh Courts. If the marriage was not lawful, however, there cannot be a divorce. 

The English and Welsh Courts will have jurisdiction to hear an application for divorce if: 

• Both parties are habitually resident in England and Wales;
• Both parties were last habitually resident in England and Wales and one spouse still lives in England and Wales;
• Your spouse is habitually resident in England and Wales;
• You are habitually resident in England and Wales and have been habitually resident here for a year;
• You are habitually resident in England and Wales, have resided in England and Wales for 6 months and are also domiciled in England and Wales; or
• Both parties are domiciled in England and Wales 

The difference between ‘habitually resident’ and ‘domiciled’

It can be difficult to distinguish these terms, but there are significant differences. The term ‘habitually resident’ refers to the place where your life is mainly based and where you are settled for a foreseeable amount of time i.e., where you own a property, work, and where your children attend school.  

‘Domiciled’ is more of a legal term and refers to the country you were born and grew up in and where you have a permanent home. You can be domiciled somewhere by choice if you permanently move to a new country. 

The rules around domicile and habitual residency can be complex, so it is recommended you take advice from a Solicitor on whether the English and Welsh Courts will have jurisdiction to hear your divorce petition. 

What is the difference between a religious marriage and a civil ceremony?

The main difference between a religious marriage and a civil ceremony is that the latter is conducted in accordance with the law. A religious ceremony is conducted in the eyes of God and will not be recognised under English and Welsh law unless a civil ceremony is also conducted. All couples who have a legally recognised marriage will be issued a marriage certificate. 

Are there advantages to divorcing in a different country? 

It may be that you have a choice of jurisdiction to issue divorce proceedings in. You should consider which country’s divorce laws are more favorable for you depending on your circumstances, as there may be differences in how the courts approach financial settlement, child arrangements, and the speed and ease of the process. Generally speaking, English Courts have the most equitable approach to financial settlements in comparison to other courts which is why England is dubbed the ‘divorce capital of Europe’. Historically, the Courts of England and Wales have been more generous towards the financially weaker spouse (typically the wife) compared to other Courts. Prenuptial agreements are not automatically binding on the Courts of England and Wales, and they have wide powers and a high degree of flexibility to make a financial award which achieves a fair outcome. The starting point for the Court is to equally divide the matrimonial assets unless there is a good reason to depart from this, and no distinction is made between contributions by the breadwinner and the homemaker. As part of their wide powers, the Court can also order the transfer of assets held anywhere in the world. If the parties are on unequal footings financially, the wealthier spouse may wish to issue proceedings outside of the UK. You should take advice early on to explore your options before deciding where to issue proceedings. 

Complications can arise if one party is living abroad, and proceedings are brought in different jurisdictions. The Court which receives the divorce petition first will be the jurisdiction which deals with it. If you want to issue a divorce in England and Wales and your spouse wants to issue in a different country, it will be a case of who gets there first. This can lead to what is called ‘forum shopping’ where there is a race to file divorce proceedings to secure the more advantageous jurisdiction. 

Sometimes, a prenuptial agreement may try and restrict a party’s choice of jurisdiction for divorce. A prenuptial agreement which has been entered into abroad would not automatically be recognised by the English and Welsh Courts. You will need to take advice on whether your prenuptial agreement is likely to be upheld by the Court and how this will impact your choice of jurisdiction. 

What do I need to do to issue divorce proceedings in the UK? 

Assuming you meet the requirements to issue a divorce petition in England and Wales, you will need to provide a valid marriage certificate (accompanied by a certified translation if it is not in English) when issuing at Court. If you do not have the original marriage certificate, you will need to obtain this from the registrar in the country you were married in to obtain an official copy. 

If you are unsure of whether you can issue a divorce petition in the English and Welsh Courts, speak to our team of Family Solicitors at Milners.