London is often referred to as the ‘divorce capital of the world’. Regardless of whether this is true or not, it is undeniable that many people with foreign nationality choose to end their marriages in England.
England is an attractive jurisdiction in which to get divorced for spouses of wealthy individuals who are keen to safeguard their marital standard of living. The English courts have a wide discretion to take into account various factors when making financial awards, including the needs of the financially weaker spouse and the children of the family. Spouses in long-term marriages benefit from a starting point of an equal division of all marital wealth, and even pre-marital and inherited wealth is not excluded from consideration.
Such a wide level of discretion and focus on providing for the needs of the financially weaker spouse may starkly differ from courts in other jurisdictions. Having considered this, it is vital for individuals wishing to file for divorce to consider their options before sending any documents to the court.
If a spouse, having first taken legal advice in all potential jurisdictions, considers that England is the preferred forum, that person will need to ensure that the courts in England will agree to deal with the case and that there are sufficient grounds for the divorce which will satisfy an English judge.
Unlike many other jurisdictions, England does not yet recognise “no fault” divorce. A spouse wishing to be divorced will need to show to the court’s satisfaction that their marriage has broken down without possibility of repair. This is done by providing one of five reasons: adultery, unreasonable behaviour of the other spouse, desertion of over 2 years, separation of 2 years with consent of the other spouse, or separation of at least 5 years.
A marriage that was entered into in another country is capable of being dissolved in England as long as it was a legally binding marriage in the country in which it took place. Whilst many foreign nationals think that they must re-register their marriage in England to divorce her, this is not necessary.
However, in order for the English Family Court to exercise its legal power to dissolve the marriage, the spouse filing for divorce will need to show that either both parties are habitually resident in England and Wales, that the spouse applying for divorce has been habitually resident here for at least 1 year or that the other spouse is habitually resident here. If none of this applies, the spouse wishing to divorce in England will need to show that he or she is domiciled in England and Wales and has been habitually resident here for over 6 months or that both spouses are domiciled in England and Wales.
Domicile and habitual residence are difficult legal concepts and the advice of a solicitor is highly recommended. It is safe to say, however, that a person cannot seek a divorce in England on a whim and without having a genuine connection with this country before a Divorce Petition is issued.