Can I Divorce in England if I am in the UK on a Visa or After Settlement?
People in the UK on work, family or business visas or those with settled status or Indefinite Leave to Remain often assume that they can't divorce in the UK because they were married overseas or that their divorce proceedings will have to be started in England by their spouse as their husband or wife is the one has British citizenship, settled status or Indefinite Leave to Remain.
In this article, our Family Law Solicitors explain whether you can get divorced in England if you are in the UK on a visa or after UK settlement.
Contact OTS Solicitors for International Family Law and Divorce Advice.
Getting divorced in England after an overseas marriage
Divorce Solicitors in London should consider two issues before advising on whether you can apply for a divorce in England:
- Recognition of the marriage in England, and
- English court jurisdiction.
Is an overseas marriage recognised in England?
An International Family Lawyer will check whether your overseas marriage is recognised in England. Most marriages are, but it is important to check. If your marriage is not recognised as a valid marriage in English law, then you cannot get divorced in England or Wales.
Generally, for the divorce court in England to recognise an overseas marriage, it must have been validly conducted under the laws of the country in which it took place. This means:
- A wedding that would not be a valid marriage in the UK may be recognised as valid in England if it meets the definition of a valid marriage in the country where the wedding took place.
- If a couple participated in a religious ceremony overseas that was not considered a valid wedding in that country, they may still be classed as married (both overseas and in England) if they also had a civil ceremony in the overseas country.
- If there is no valid overseas marriage, a couple cannot get divorced or start a financial remedy application in England and Wales, as these applications are reserved for spouses and civil partners.
It's best to check with an International Divorce Solicitor to see whether your marriage is recognised in England.
The requirements to start no-fault divorce proceedings in England
If your overseas marriage is recognised in England, the English family court must also be satisfied that:
- The marriage meets the general requirements, and
- The jurisdiction requirement is met.
The general requirements for a divorce in England or Wales
The general requirements for a divorce in England or Wales are:
- You have been married for at least 12 months, and
- The marriage has irretrievably broken down.
In England, you can get divorced if you think your marriage is over, even though your spouse does not agree because they think that the marriage could be saved.
The rules in England allow you to either make a joint divorce application or an application as a sole applicant. The procedure is similar whether you make a joint or single application.
The jurisdiction requirements for a divorce in England or Wales
To meet the jurisdiction requirement for a divorce in England or Wales, you must meet at least one of these criteria:
- Both of you are habitually resident in England and Wales.
- Both of you were last habitually resident in England and Wales, and one of you continues to reside in England or Wales.
- For a joint application, either of you is habitually resident in England and Wales.
- The applicant (person applying for the divorce) is habitually resident in England and Wales and has lived there for at least one year immediately before the application was made.
- The applicant is domiciled and habitually resident in England and Wales and has lived there for at least six months immediately before the application was made.
- The respondent to the divorce application (the spouse responding to the application if their spouse has made a sole divorce application) is habitually resident in England and Wales.
- Both of you are domiciled in England and Wales, or only one of you is domiciled in England and Wales.
The same rules on jurisdiction apply if you want to dissolve a civil partnership rather than apply for a divorce.
The jurisdictional rules are complex, so it is best to consult a Divorce Lawyer before starting no-fault divorce proceedings.
The meaning of habitual residence
Habitual residence means where you normally or ordinarily live. In other words, where you are settled, have a home and work. You will not change your habitual residence if you go on holiday for a month, but you may do so if you come to England on a visa intending to make England your new home.
The meaning of domicile
Your country of domicile is the country you consider your permanent home. You could be temporarily in England on a visa and consider your birth country your country of domicile, as you intend to return there to live and make it your home.
It is easier to change your habitual residence than it is to change your domicile at birth to a domicile of choice. It is possible to do so if, for example, you move to the UK and obtain settled status, Indefinite Leave to Remain or British citizenship and intend the UK to be your permanent home, where you will remain after you retire.
Divorce court jurisdiction legal advice
If you are unsure whether your visa status, settled status, settlement or British citizenship (or your spouse’s immigration status) gives the English court jurisdiction to make a divorce order, it is best to take legal advice from an International Divorce Solicitor before you start divorce proceedings. A delay in starting English divorce proceedings because of jurisdictional uncertainties may enable your spouse to apply for a divorce in a country of their choosing. If your spouse chooses the country to get divorced in, it is often because the laws there will result in a more favourable financial settlement than the courts in England and Wales would.
Generally, the family court in England is often viewed as:
- Inclined to make more generous financial court orders to women than in some other countries, and
- Generous to the financially weaker party to the marriage, compared to some other countries.
- Less likely to uphold all prenuptial agreements, postnuptial agreements or community of property regime agreements – but this will depend on the circumstances of the agreement or regime and the needs of the husband, wife and children at the time of the financial settlement proceedings.
Family, financial and immigration considerations in international divorce
If you or your spouse has overseas connections, you may need specialist legal advice from International Family Lawyers with expertise on:
- Advising on the best divorce jurisdiction.
- Childcare arrangement and taking a child overseas to live after a separation or divorce.
- Child abduction where a spouse is alleging child abduction or where a spouse needs legal advice on whether a planned holiday or relocation requires the other parent's agreement or a UK holiday or relocation order.
- Financial disclosure and obtaining financial court orders where a spouse owns property overseas or where a spouse is transferring property or monies to their home country.
- The structuring of financial court orders when assets are held overseas, such as pensions, offshore trusts, foreign registered companies or investments.
- The immigration issues flowing from a decision to separate from a spouse while in the UK on a Spouse Visa or on a Dependant Visa as a dependant of a Work Visa holder.
- Enforcement of financial court orders when assets are held overseas.
Our experienced Family Law Solicitors in London can advise you on all aspects of your divorce and the resolution of all associated family, children, and financial issues.
Appointments are available at our London office, by phone, or via online consultation.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil, Tagalog/Ilonggo, and Urdu/Punjabi.
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