Expat Divorce in England – Forum Shopping

Expats and Divorce

A lot of British people live abroad, for example because they are married to a foreign spouse or to work in another country. Popular places for British expats are Hong Kong, Dubai, Abu Dhabi and the remaining United Arab Emirates, Saudi Arabia, South Africa and other African countries, the USA, China and of course Australia, New Zealand, Canada and other Commonwealth countries. In Europe there are large numbers of British expatriates in Spain, Greece, Italy and Turkey. Other British people live in British Overseas Territories of Anguilla, Bermuda, the British Virgin Islands, the Falkland Islands, Gibraltar, Montserrat, Pitcairn, Saint Helena, and the Turks and Caicos Islands as well as in the Crown Dependencies of Jersey, Guernsey and the Isle of Man. Many British people live in Germany, whether through the army or RAF or for other reasons.

In some of those countries where expats live divorce is not possible, or difficult or there is no or inadequate provision for maintenance. Sometimes the assets are in the UK, such as a house (which may be rented out) and pensions, which the foreign court may not be able to deal with even if it wanted to, for example in France.

Unless there is a full agreement about the financial arrangements, it may be that the outcomes of a financial court dispute may be very different in the country where you live and in England and Wales. Therefore you should get detailed advice from a specialist in international family law both in the country where you live as well as in England and Wales before you decide where to start a divorce as a British expat. It is important that you act fast because in some cases if your spouse decides to start a divorce, you are stuck with the courts in that country. We cannot advise on Scots or Northern Irish law and if your only connection to the UK is with Scotland or Northern Ireland, you will need to seek advice from a specialist in the respective jurisdiction.

Can I start a divorce in England and Wales as an expatriate?

Whether you can divorce in England or Wales depends on if any of the ground for jurisdiction for divorce apply to you. If both of you live abroad, you are probably “habitually resident” there. If you are only abroad for a very short period of time, you may not actually live there (say a 3 month work placement or an extended holiday), but if you have moved abroad even if you have strong connections to England, you are probably habitually resident where you live. If you are travelling around the world, you may not be habitually resident anywhere or anywhere outside England (for example if you are working on a ship). It is a question of fact. Most grounds for jurisdiction rely on one or both of you being habitually resident in England or Wales, so if you are not, you cannot use any of those.

If one of you is English or Welsh, you may be “domiciled” in England or Wales and you could then start a divorce based on one of the ground for jurisdiction based on domicile. Domicile is not the same as “residence” or “Domizil” in Germany or “domicile” in France (which signifies where you live), but relates to the country with which you are most closely connected. This is something you either inherit from your father or mother or acquire by choice. The concept is complex and you will need to discuss this with a specialist in international family law in England or Wales. We may need to ask you a variety of questions about your and your family’s history (and that of your spouse).

What is more, in other countries which also have a concept of domicile (for example Scotland or the US) the concept bay be ever so slightly different. So get advice from an English lawyer.

If you are a same-sex couple and in a civil partnership or married and you registered your civil partnership in England or Wales or married here, you may even be able to start a civil partnership dissolution or a divorce here even if you have no other connecting factor with England or Wales. This is because so many countries do not have equal marriage or any partnership law for same-sex couples and you could then never dissolve your marriage or civil partnership. If this applies to you, contact us and we can check out whether this is an option for you.

What if I move back to England?

If you move back to England and Wales and you are not domiciled here, you have to live here for a year before you can start a divorce based on habitual residence. So again, have your domicile situation checked out. Even if you have lived abroad for a long time but come back to England or Wales for good, you may automatically revert to your English or Welsh domicile of origin, and can start a divorce straight away.

If your husband or wife has moved to the UK and you are left behind abroad – even if they let you think that the marriage is still fine – be aware that they may just be waiting for the time to be up for them to start the divorce here. This applies even if they are not English. Unfortunately, we have come across cases where one spouse has started a divorce here whilst pretending the marriage was find before. If it happens to you, your spouse will be the one in the driving seat.

What is “forum shopping”?

Forum shopping is a term, often used pejoratively, for what someone does when they compare in which country they would do better with their divorce or financial court order. There is nothing wrong with this because if you do not check out which country is best for you, the chances are your husband or wife will do it and get there first. So get advice as soon as you can and make sure your lawyer can act on it.

Is it always a question on who starts the divorce first?

No: Since Brexit the English courts have a discretion on whether to stay the English divorce or continue it when there are divorce proceedings in another country. However, other countries may not stay divorce proceedings there even if the English court thinks the divorce should continue in England, for example if the divorce was started in the other country earlier. You could then have conflicting divorce orders and conflicting financial orders. So it is probably still best to make sure you start the divorce application first in the country of your choice.

Conversely, even if you start a divorce in England first, your spouse can argue in the English courts that the other country is the right place for the divorce and the English courts may then not deal with your divorce, but stay the case in favour of the other country. This is called the doctrine of “forum conveniens”.

Within the EU (except Denmark), in whichever Member State a divorce is started first, those courts decide on whether they have jurisdiction to hear it under EU law and if so, the divorce stays there.

Which law will be used by the courts?

English courts always use English law on divorce and for the financial settlement. The courts in other countries may use their own law or English law (say, because you are both English) or some other law (say, because when you married you first lived in another country). Some countries, such as Germany, provide for different law to be used for different aspects, such as the divorce, spouse maintenance, child maintenance, pensions and the division of the assets.

In the EU there are rules on some of these issues, but not on others. As for the law on divorce, only some EU countries decided on having an EU law apply to them. It is therefore important that you get advice from someone in the country where you live who is an expert on international family law and can advise you on applicable law before you can then ask what the likely outcome would be.

You should also consider that even if a foreign court was to apply English law, they may not be very good at it. Some countries have similar laws, or their law comes from the same historical development, such as France, Spain, Italy and the Netherlands, who all derive their family law from the Code Napoléon. However, English law is based on a mix of Acts of Parliament and case law made by the courts. It is therefore likely that a foreign court will decide a case on English law very differently to what an English court would do.

How will the English court decide on the financial settlement?

In England the courts have a discretion about what to do and will look at all the circumstances of the case before deciding on a fair financial outcome. In particular they will look at all financial aspects together, such as maintenance, pensions, assets and income and not deal with it piecemeal as a lot of other countries do. This could be an advantage or disadvantage to you. More details of how the English courts approach financial applications are in our section on finances.

Can an English financial order be enforced abroad?

This is an important issue to consider before you decide where to start a divorce. If you both live abroad and the only asset is a house there, it may be very difficult to enforce an English court order for the house to be sold.

First consider where the assets are. If a main asset is a UK pension and you are close to retirement age, you need to consider that the foreign court will not be able to make an enforceable order to share the pension. So that may indicate that you want to start your divorce in England. If you are renting out your UK house while you live abroad, an English court order for a transfer or sale of that property would be enforceable, while a foreign one may not be.

If the assets are divided between countries, the English court can offset them against each other.

• So it could, for example, give you the house in England (to sell, trade down and free capital to invest and live on, say) because it would be very difficult to enforce a maintenance order against your spouse where they live.
• In a different case, where there is a house abroad and a pension in the UK, the English court may give you the whole pension because an order to sell the house would be difficult to enforce.
• In another case where there are assets in the UK and a pension abroad (or your spouse has a pension from an international organisation, such as an EU pension, a European Patent Agency pension or a UN pension), the English court could decide to give you assets worth the same as your spouse’s pensions to off-set for the fact that the pensions cannot be shared.

In other countries the courts may not be able to look at these aspects together and will just divide the assets and then throw their hands up when it comes to a foreign or international pension.

Maintenance is usually easier to enforce, although this depends on each individual combination of countries. There is a wide variety of international treaties and conventions on the recognition and enforcement of maintenance orders and an expert lawyer will need to check for you which applies to you. However, in practice it can take years before you get any money into your account and in the end it depends on the courts in the other country on whether they will take action and how they will pursue the non-payer of maintenance.

What if it is too late and my husband or wife has started a divorce in the country where they live?

It may not be too late after all. English law has a provision which allows you to come to the English courts for financial provision after a divorce abroad. You have to get permission from the court first and the procedure is complicated. In some cases it may be obvious that the foreign court has left something out (say a pension or a house in England), in others it will be difficult to show that the provision you got from the other court was inadequate and not just a little different.

You will need to consider the case carefully with an expert in international family law. In any event, it is better if you do not let it come to this and have the divorce in the country best suited to you in the first place.

How can I instruct a solicitor in England if I live abroad?

Andrea Woelke has many clients who live abroad and some who he has never met. Almost all first meetings are now virtual via Teams, so instructing Andrea from anywhere in the world is not a problem at all.

After the first (virtual) meeting, we can probably deal with everything via email and telephone, which the vast majority of our clients, whether they live in London, elsewhere in England or abroad, prefer anyway.

Even in international cases it is possible to come to an overall agreement through mediation. Sometimes it may be necessary to start court proceedings in one country first so that the other party cannot do that in another country. However, litigation in international cases can be costly, in particular if there are legal proceedings in more than one country. Mediation can cut through this and you can start mediation at any time in the proceedings.

For advice on your specific circumstances contact Andrea Woelke who works as a consultant solicitor at Josiah-Lake Gardiner Solicitors: ring Andrea on 020 3633 0338 (+44 20 3633 0338 from abroad) or him (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).

Please note that Josiah-Lake Gardiner Solicitors do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.

15 January 2024 by Andrea Woelke