There are numerous reasons why people are married abroad. For some, the romantic idea of tying the knot in a far-flung tropical location is the lure, while for others it’s to do with family connections, maybe one partner is originally from a different country. Whatever the reason, it is not uncommon for divorcing couples to seek help and advice from legal experts on whether there are specific rules that apply to them, having not had their wedding in the UK.
The good news is that in most cases it is possible to initiate divorce proceedings in England and Wales for a marriage that took place abroad, however, there are some stipulations. Firstly, you need to have a valid marriage certificate. This needs to be accompanied by a certified translation if it is not already in English and will need to be sent to the court along with the divorce petition. Secondly, the marriage must have been legally binding in the country where you married.
Establishing the legality of the marriage
One of the first things that you will need to do is establish that your marriage was lawful in the country in which you had your wedding ceremony. This is when it has been carried out in accordance with the local customs of that country, for example, were the appropriate number of witnesses present, were any necessary religious requirements carried out, as well as civil ones. If all the legal criteria were adhered to then your marriage will be deemed lawful and you will be able to begin divorce proceedings in the UK. If not, then a divorce will not be possible on the grounds that there is no marriage.
What if your spouse is now living abroad?
It is still possible to begin a divorce even if your spouse is now living abroad. English courts, which legislate for England and Wales, require one of the following conditions to be met in order for this to happen:
- Both you and your spouse are habitually resident in England or Wales.
- You were both habitually resident in England and Wales and either one, or both of you still reside here.
- You are habitually resident in England and Wales and have been for at least a year.
- You are habitually resident in England and Wales, have resided here for at least 6 months and have domicile status.
- You and your spouse both have domicile status in England and Wales.
What is habitual residence?
To pass the habitual residence test, you must prove that you have the right to reside in the UK and that it is the place that you have made your home at the current time.
What is domicile status?
This is a little more complicated than habitual residence and reflects a more permanent situation. Your original domicile status is the same as that of your father at the time of your birth, or that of your mother if your parents were not married. For this to be altered, you must evidence that you intend to live permanently in another country and not return to your country of origin. It is essential to seek guidance on this area if it applies to you as it can be quite complex.
Do these conditions apply in Scotland?
Scotland has slightly different laws around divorce to the rest of the UK. If you were married in another UK country and live in Scotland then you can divorce in Scotland with no issues. In order to initiate divorce proceedings in Scotland when your marriage took place outside of the UK, you have to prove your residential status and the marriage has to be recognised as valid in the UK.