Can you get an online divorce as an Expat?
Many British expats end up getting married abroad, either to another British expat or to a foreign national.
But what happens if they later decide to get divorced; can they still get an online divorce in the UK or do they need to apply for a divorce in the country they got wed?
Let’s look at why the English and Welsh courts are often used by expats over other jurisdictions.
How to divorce someone who lives abroad
As long as the international marriage was conducted lawfully and at least one spouse is still considered to be habitually resident or domiciled* in the UK, it will generally be possible to get divorced in the UK.
The process of filing for divorce in England and Wales is no different whether the marriage took place domestically or overseas.
An application for divorce must be submitted to court, the other party submits their response before it moves on to the conditional order and final order (decree absolute).
In England and Wales, it is possible to get an online divorce, since these jurisdictions allow online divorce, without the need for physical court presence.
*British Expats who left the UK to go and live abroad temporarily will normally be considered to still be habitually domiciled in the UK. However, if they have decided to leave the UK permanently (eg they have obtained citizenship of another country) then they probably will not be considered habitually domiciled in the UK.
Divorce when living abroad: The rules of English and Welsh courts
British expats who married abroad and who would like to apply for divorce in England and Wales need to meet certain rules:
- The marriage must be legitimate in the foreign jurisdiction – it must have been conducted in a manner prescribed by the law of the jurisdiction where the wedding took place.
- The marriage must be recognised as legitimate in the UK – if the marriage has been conducted according to the prescribed laws of the relevant jurisdiction it will normally also be recognised as legitimate in the UK. But there are also issues of capacity for both spouses which must have been met, and any previous marriage must have been officially ended before the new marriage went ahead.
- Evidence of the marriage must be produced – a marriage certificate or equivalent must be produced. A certified translation will be needed in respect of a formal marriage certificate which is in a foreign language.
As long as the above rules are met, and at least one spouse is still considered to be habitually resident or domiciled in England and Wales, the English and Welsh courts will allow a divorce to go ahead.
Do you have to divorce in the country you were married in?
There is usually no requirement to get divorced in the country in which you were married.
As long as the marriage is legitimate and one spouse is considered habitually domiciled in England and Wales, then the divorce can normally take place in England and Wales.
Many couples choose England and Wales over other jurisdictions when it comes to conducting their divorce proceedings.
This is because England and Wales are considered to have one of the most equitable divorce systems in the world. Furthermore, it is possible to get divorced online in England and Wales, which can save time and money.
So even if the wedding took place overseas under the laws and customs of a foreign country, many expat couples will often prefer to get divorced in England and Wales.
Can you serve divorce papers internationally?
One of the first major steps in getting a divorce is for one divorcing party to complete a matrimonial order which essentially comprises the divorce application to court.
Once the application has been submitted and approved, the court will send a copy to the other spouse along with an ‘acknowledgement of service’ form. This is often known as ‘serving divorce papers’.
Until recently, when no fault divorce was introduced into law in England and Wales, serving divorce papers internationally could cause delays as you may expect.
However, as divorce applications are now processed digitally, you can essentially serve your ex-partner via email (if you have a valid email address for them).
If the other party fails to respond to the acknowledgment of service form, it may be necessary to personally serve the papers via a court bailiff or process server, and arranging this internationally can create further delays.
If a spouse living abroad proves particularly elusive, it may be possible to ask the court to ‘deem’ service has taken place, or even to dispense with the requirement of service altogether.
For more information about deemed service, read our guide on what to do if your ex ignores the divorce papers.
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