What happens if I'm divorced overseas?

As global communications shrink the world ever faster, there is no guarantee that a married couple will necessarily both live in the same country following separation. So, what happens when one of them starts divorce proceedings in a different country?  

What does the law say in England and Wales? 

You can apply to an English or Welsh court for a divorce if one of the following tests are met: 

a.         You both live in England and Wales

b.         England or Wales is where you last lived and one of you is still living here

c.         Your spouse lives in England or Wales

d.         You live in England or Wales and have done so for at least a year

e.         You call England or Wales your home (known as ‘domicile’) and you have lived here for at least 6 months

f.          Both of you call England or Wales your home; or

g.         One of you calls England or Wales your home (you don’t necessarily have to be living here at the time)

If none of the above applies to you, it is still possible to get divorced in an English or Welsh court if you got married under the laws of England and Wales and it would be ‘in the interests of justice for the court to assume jurisdiction in the case’. 

What was the situation that the court had to consider here? 

The couple was only together for 3 years and married for two of them. There were no children and a disagreement about where they had lived during the marriage. Mrs J said England and Mr J said China. After they separated, Mr J moved to China and Mrs J, who was of Polish origin, stayed living in England and started divorce proceedings. 

Mr J managed to avoid service of Mrs J’s divorce proceedings, but actually then started a divorce himself in China which concluded just over a year later. By then, the English divorce proceedings hadn’t made much progress, not because of the lack of action by Mrs J but because of delays inherent in the English court system.  

What happened next? 

In the High Court, a judge held that despite the delay in the English divorce not being Mrs J’s fault, she had known about the Chinese proceedings, had had the opportunity of involving herself in them and therefore she was divorced in China. Therefore, all her applications in England were dismissed.  

The judge made it clear that if a decree of divorce had been granted in a foreign court, the English court should be very slow to fail to recognise it. Although each case would need to be assessed on its own merits, in these circumstances the Chinese courts were properly seized of the matter and that was an end to it.  

Should Mrs J feel aggrieved? 

Given that the delay appeared to be because of the inefficiency of the English courts, Mrs J has every reason to feel aggrieved. Had the courts here been less slow in dealing with things, she might well have had her divorce in England – and then crucially been able to make a financial application and have it dealt with here as well.  

Over the last 18 months, we have seen the courts struggle to keep up with proceedings.  There have been significant delays in most aspects of cases – sometimes for many months.  This case shows how important it is to get early legal advice, not just if you want to start divorce proceedings in England or Wales, but also if your spouse starts them abroad.  

We are always happy to discuss matters with you and offer a free 15 minute initial telephone call.  If you would like to take advantage of that, why not give us a call?

If you require any more information on this topic please contact Philip Hoddell via  philip.hoddell@birkettlong.co.uk or 01206 217320.