Divorce & Domicile
England has become the Divorce capital of the world. No, not because all British marriages lead to divorce, not at all, but because so many of the rich and famous now travel to England specifically to get their divorces. However; In determining whether you can obtain a divorce in England, there are some technical factors which need to be considered.
Firstly, lets be clear that the law in England and Wales is completely separate to the law in Scotland. Scotland is a separate jurisdiction for divorce, just like say France or Japan and they have their own divorce courts and divorce lawyers. However; just because one of you is Scottish does not mean that you can’t divorce in England, just like if one of you is French, Turkish or American, it may still be possible for you to divorce in England. Even where both of you are originally non-British, you might still be able to divorce in England.
One of the main questions to consider is ‘where are you domiciled.’ The answer to this will determine whether you can seek a divorce in England & Wales. For legal reasons which we won’t go into here, England & Wales share the same legal system and, the same courts and laws.
You will often have come across the words ‘residence’ and ‘domicile’. These are not the same thing. They each have very different meanings in law. By way of example, you might have been a resident of Australia, for instance, for many years and still be domiciled in the UK for divorce purposes. Domicile is a complex legal concept. However; basically it means that you have a ‘legal connection’ with England and that the English courts therefore have jurisdiction to grant you a divorce. This legal connection continues until and unless it is terminated or relinquished by some event. You can inadvertently relinquish your domicile by:-
- taking out foreign citizenship or naturalization or
- cutting all ties with England and having the intention to remain in your chosen country for the rest of your days
It therefore follows that in most circumstances, anyone originally from England or Wales or born in England & Wales can use the English Courts, on the basis that they are ‘domiciled’ in the UK. However by the same token many people born elsewhere may well have chosen to be domiciled in England & Wales. This is called your ‘domicile of choice‘.
When filing a petition for divorce at the court in England & Wales, one of the questions which needs to be addressed is the issue of ‘domicile’ or ‘ordinary place of residence’ of the petitioner and respondent. The court must be satisfied that the English jurisdiction applies to the divorce, before the petition will be permitted to progress. Therefore divorce judges, when considering this issue, will usually ask themselves; ‘was the connection with England of the petitioner sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage.’ Once the English court is satisfied that England is the Petitioner’s ‘place of domicile’ and the petitioner has not ‘abandoned’ England & Wales then the court can deal with the divorce, even in cases where someone has lived abroad for many years.
Occasionally the judge will query the question of ‘domicile’ in a divorce, at the Decree Nisi stage. This will usually happen if the judge suspects that the petitioner has ‘relinquished their domicile’, usually because the judge has reason to believe that the petitioner has decided to spend the rest of their days in their adopted country. Therefore the domicile that you have, usually from birth or through choice of nationality and life is called your ‘domicile of origin’, and the domicile that you adopt through your own choice, such as by taking a new nationality is called your ‘domicile of choice’.
In these circumstances, a judge will ask a petitioner to ‘file further evidence of domicile’ before granting a Decree Nisi. This is usually done by the petitioner setting out the circumstances of their domicile in an aworn affidavit (a sworn statement of truth), which is then sent to the court.
Factors that will be important in determining your domcile, for the purposes of divorce in England, are as follows:
- whether you were born in England or Wales
- whether you hold a British passport
- whether you have close relatives in England
- whether your main assets are in England & Wales, and
- whether you regard England as your ‘home country’ and do not intend to live abroad forever
However, remember that an affidavit is a sworn statement of truth. You should always take expert independent legal advice before signing any legal document and this applies all the more to an affidavit. If you require any assistance with this or any other aspect of divorce law in England & Wales, contact us on 020 8401 7352 for a free initial telephone consultation, or to book an appointment.
p.s please note that ‘domicile’ has many different legal meanings. The above relates to divorce and family law. The meaning of the word domicile differs in relation to tax, immigration and for the purposes of HMRC. Always ensure that you seek independent legal advice from an expert solicitor and always look for the Solicitors Regulation Authority membership for your guarantee of excellence
