Can you get divorced in England & Wales if you married abroad? Key legal considerations explained

Understanding how an overseas marriage is treated under English and Welsh law is an important first step for anyone considering divorce. The rules can be complex and the process often depends on where the marriage took place, how it was conducted and the personal circumstances of each spouse. 

Here, international divorce law specialist Amy Harris from our Brabners Personal team outlines the key legal considerations that you need to be aware of.

Recognition of overseas marriages

You may not be able to divorce in England and Wales if your overseas marriage isn’t recognised here. In practice, however, most marriages conducted abroad are recognised under English and Welsh law.

The court in England and Wales can issue divorce proceedings for the majority of marriages that took place abroad. This will depend on where the marriage happened and the circumstances surrounding it. Generally, the court requires that the marriage was validly conducted under the laws of the country in which it took place. It’ll then consider whether that marriage can be recognised as valid under English and Welsh law. In some circumstances, it may be necessary to apply to court in England for recognition of a foreign marriage — but this is unusual.

The fact that a marriage wouldn’t be permissible in England and Wales — for example, a polygamous marriage — may not prevent recognition. However, you may need specialist family law advice to clarify your position.

Occasionally, people who marry abroad may have a civil registry office marriage in addition to a religious ceremony. It’s advisable to provide your family lawyer with details of both marriages so that the local laws can be considered and the divorce issued appropriately. For some people who’ve had a religious marriage abroad, it may be recognised in England and Wales — but for others it may not. The couple will therefore be treated as unmarried. The law for separating cohabiting couples is currently very different from the claims that married couples can make when they divorce. 

Jurisdiction requirements for divorce in England & Wales

Even if your marriage is recognised in England and Wales, you must still meet the jurisdiction requirements to divorce here and specialist legal advice on this issue should be taken. 

Firstly, you must have been married at least one year, your marriage must be recognised and your relationship must have permanently broken down. You’ll also need to decide whether to make a sole or joint application with your spouse. 

Secondly, you must meet at least one of the following criteria:

• Both parties to the marriage/civil partners are habitually resident in England and Wales.
• Both parties to the marriage/civil partners were last habitually resident in England and Wales and one of them continues to reside there.
• The respondent is habitually resident in England and Wales.
• For a joint application, either person is habitually resident in England and Wales.
• The applicant 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.
• Both parties to the marriage/civil partnership are domiciled in England and Wales or only one of the applicants or respondents is domiciled in England and Wales.

For civil partners or same-sex marriage only, if none of the above fit your situation, you may still be able to apply if you registered as civil partners in England or Wales or — in the case of a same-sex couple — married under the law of England and Wales. It’d be in the interests of justice for the court to assume jurisdiction.

Understanding habitual residence & domicile

To help determine jurisdiction, you may need to understand the following terms:

• Habitual residence: this is where you’re settled and intend to stay settled. It’s typically where you work, own property, have children in school, are registered with a doctor or receive state benefits.
• Domicile: this is the place of your permanent home — where you live or intend to return to. When you were born, you acquired your parents' domicile (your father's if they were married or your mother's if they weren’t married or if your father died before you were born). If you’ve since moved to another country and made that your permanent home, your domicile may have changed. 

If you’re unsure whether you meet the criteria above, you may need specialist legal advice before making an application for divorce.

International considerations

If your former partner remains abroad, you may also want to take specialist legal advice in England and Wales and possibly from a lawyer in the country where your partner lives. This helps to ensure that the paperwork is properly served in accordance with the relevant rules and — where appropriate — the law of the country in which they live. 

Some couples may have a choice of where they can divorce. If so, it’s usually advisable to obtain legal advice in all relevant countries. A specialist international divorce lawyer can help you to arrange a joint meeting with a lawyer abroad so you can work out together where the best place to divorce is. If you do have a choice, there are many factors to consider. 

These include:

• Where you live.
• Where your partner lives.
• Where your children live.
• Where your assets are based.
• The likely financial settlement you may achieve.
• The rules around service and how easy this is to achieve (e.g. some countries allow service via email, others don’t).
• How easy it’ll be to enforce an order if there’s non-compliance.
• Practical considerations like cost, time, cultural issues and any language barriers.

This list isn’t exhaustive and it’s sensible to take legal advice from an appropriate international divorce lawyer about your options.

Financial matters

While divorce may dissolve your legal partnership, it doesn’t sever the financial ties between you and your spouse. To do this, it’s advisable to have a financial settlement, which only becomes legally binding once it’s enshrined in a financial order approved by the court during the divorce proceedings. The court can only approve it once you’ve reached the conditional order stage. A financial order is important even if you enter into a clean break agreement — meaning that you each retain your own assets, income, pensions and liabilities upon divorce. 

It’s also important to review or make a Will as divorce affects inheritance. 

Talk to us

If you’re dealing with a marriage that took place abroad or facing cross‑border issues around finances or children, our international divorce experts can help you to understand your position and the routes available to you.

We cover all aspects of the process, including:

• Starting divorce, dissolution or nullity proceedings in England and Wales.
• Disputes regarding the appropriate country or jurisdiction in which to issue proceedings.
• Collaborating with overseas lawyers where there are issues concerning multiple countries or jurisdictions.
• Non‑receipt of a financial settlement as part of your overseas divorce.
• Inadequate financial settlements as part of your overseas divorce.
• Assisting with matters relating to child arrangements.
• Advising on child abduction, unlawful removal of children, international child relocation and international surrogacy arrangements.

Talk to our international divorce experts by calling 0333 004 4488, emailing family@brabners.com or completing our contact form below.

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