I was divorced overseas, will my divorce be recognised in England and Wales?

24 Jan 2022

Recognition of foreign divorce is important for a number of reasons. You may want to re-marry here, for example. Divorce also impacts Wills and inheritance, immigration, tax, welfare benefits, and what financial remedies may be available to you.

The impact of Brexit
Under EU law, all divorces made in any EU country were automatically recognised in any other member state without any special procedure. This still applies between England and Wales and the EU for all divorces granted or started before the 31 December 2020, the end of the transition period. For any new divorces started after that date, the automatic recognition of divorces between England and Wales and the EU will no longer apply.
 
The UK is a signatory to the Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations (‘The 1970 Hague Convention’). About half of the EU Member States are also signatories (with some notable exceptions, including France and Germany). This provides a mechanism for the recognition of divorces in all contracting states, conditional upon the presence of certain links between the spouses, or either one of them, to the state of the divorce.

However, for those countries that are not signatories of the Hague Convention, the situation may be very different, as it comes down to national law.

England and Wales will recognise most overseas civil court divorces, subject to a few criteria (which is discussed below). However, the recognition of English divorces in other countries may be problematic, as not all countries are as liberal in terms of recognition.

Recognition 
A divorce obtained by another court within the UK will be recognised in England. Any other form of divorce, such as a religious divorce (an Islamic Talaq for example) will not be recognised.

Divorces started in EU Member States after the end of the transition period (that are not signatories to the 1970 Hague Convention) are now treated in the same way as non-EU counties. Recognition will depend on whether the divorce was obtained by way of “proceedings” or “other than by means of proceedings”.

A divorce obtained overseas by way of legal proceedings (court as well as other non-court proceedings, which includes a degree of state or other official involvement) shall be recognised if:
  1. The divorce is valid in the country in which it was obtained; 
  2. At the start of the divorce proceedings, either spouse was resident or domiciled or a national of the country where it was obtained; and
  3. Both spouses had notice of the proceedings.
Recognition of divorces obtained otherwise by means of proceedings is more uncertain. In order for the divorce to be recognised, neither spouse can be a habitual resident in the UK for a year before the divorce is started and each party must be domiciled in the country of the divorce, or in a country which recognises the form of the divorce. This category includes religious divorces.

The divorce must have started and finished in the same country. 

Domicile and Habitual Residence
Habitual residence is generally a question of fact, whereas domicile is a legal concept.
 
Habitual residence within the context of divorce, is generally considered to be the place where the person has established, on a fixed basis, their permanent centre of interests, and there is a habitual element to their residency.

Domicile is not the same as residence or nationality. Under English law no person can be without a domicile, and it is only possible to have one at any time. Put simply, it is the country a person has the closest long term connection. It is possible for a person to be habitual resident on one country but to retain domicile in another.

Under English law, there are three central types of domicile; domicile of origin (acquired at birth), domicile of choice (a combination of residence in a country and an intention to make your permanent home there) and domicile of dependence (applicable to children under the age of 16, which follows the domicile of parents).

If you have been divorced abroad, and you are not sure of its status, legal advice should be sought, often in conjunction with legal advice in the country of divorce.

For further advice and information, or if we can be of assistance regarding any other matrimonial or family matter, please contact our family team.
 

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