Divorce in England and Wales: Do You Qualify?

For many of our clients, deciding to get divorced in England or Walres is obvious. They got married in England, and they have lived in England for the entire duration of their marriage. Therefore it is something they do not even really need to consider. But do you qualify? In fact, divorcing in England and Wales is a process with important requirements.

You may not realise that there are legal requirements to get divorced in England and Wales. Understanding the process when divorcing in England and Wales is crucial.

Do I have to get divorced in the country I got married in?

The simple answer is no. In reality however, it is more complicated.

When you make your application for divorce on the government website, you must confirm that you satisfy the ‘jurisdiction’ requirements.

What are the ‘Jurisdiction’ requirements?

Before you can proceed with a divorce in England or Wales you must satisfy one of the following:

1. You and your spouse are both habitually resident in England and Wales.
2. You and your spouse were both habitually resident as a couple here, and one of you still lives here.
3. You want to start a divorce, and your spouse is habitually resident in England and Wales.
4. You want to start a divorce and you have lived in England and Wales for at least twelve (12) months.
5. You want to start a divorce and have lived here for six (6) months, and are also domiciled here (see below).
6. You and your spouse are both domiciled in England and Wales.

So, what are these terms?

What is ‘Domicile’?

Your domicile is the country that is your permanent home. You have ‘substantial’ connections there for example whether your property and assets are there, where you are eligible to vote there or whether you retain a passport. But, in some instances you do not actually have to currently live there, just have an intention to return.

Your domicile of origin is determined by the country your father was domiciled in when you were born. You do not have to live there for it to be your domicile of origin.

You can however change your domicile by permanently moving to a new country and severing all of connections with the previous country, and have no intention of returning. This is your domicile of choice.

What is Habitual Residence?

Habitual Residence is a  much simpler concept which is defined by the country you live in for most of the time at the point of starting divorce proceedings. Therefore, divorcing in England and Wales depends on your habitual residence or domicile there at the relevant time.

Question: I haven’t lived in England for long enough?

Unfortunately, the only option is to wait. The issue with this however is that your spouse may decide to apply for the divorce in a different country. It is therefore important to ensure that you make enquires with lawyers in the respective country. This applies if you suspect your spouse might be doing the same. If you are considering divorcing in England and Wales but do not meet the residency requirements, it is vital to seek legal advice early.

Jurisdiction Disputes

England and Wales are countries with “no fault” divorce. Therefore, this makes it an attractive place to start divorce proceedings. Many of our clients also wish to deal with their finances in England and Wales, rather than the country they got married in.

There are however instances where one party may not wish for the divorce proceedings to take place in England and Wales. In that case, they may contest the divorce on these grounds. This then turns our previously simple divorce process “contested”. It will then be down to the Court to decide which country is more appropriate for the divorce to take place in.

How do the Courts decide?

If the Courts are satisfied that the parties can get divorced in England or Wales, they must then decide whether they reasonably should. They will look at which country is the most appropriate forum. This is known as “forum conveniens”.

I refer to  the case of  SK v RR [2024] EWHC 1418 (Fam)  upon which I worked on as a trainee solicitor. The husband applied for the divorce in India, and the wife applied in England. The court determined that England and Wales was the more appropriate jurisdiction as both parties were living in England. Not only this but their matrimonial assets, a property, were also located in England. Therefore, this would streamline divorce proceedings.

How do I decide?

When deciding which country is the best jurisdiction for your divorce application, there are many important factors. These include where the assets are, where any children reside, and where parties live and are employed. It is therefore essential to obtain advice as soon as possible from a family law expert.

To speak to a member of our family law team, contact Blanchards Law today on 03333446302. With offices in Beaconsfield, Henley, Marlow & London, we would be happy to assist you.