United Kingdom – England and Wales

An international divorce is very different from other divorces.

Consideration must be given to the court’s jurisdiction, applicable law, recognition of the foreign marriage and enforcement of the court’s order.

When a parenting plan has to be made, it is more complicated when the parents do not live in the same country.

On this page you can read how this is regulated in England and Wales.

Country Reporter:

Sarah Jane Lenihan

Sarah Jane is a specialist in financial remedies and private law children matters, including advising individuals with substantial income and assets with complex international elements.

Sarah Jane is partner at Dawson Cornwell in London.

Sarah and her colleague Anna Shadbolt have volunteered to keep this page about England and Wales up to date.

DISCLAIMER
The text below is intended as general information only and should not be regarded as legal advice. The author does not accept any liability for reliance upon the information provided on this page. Anyone seeking to embark in a legal process should seek specific specialist advice in advance of doing so.

Lawyers and mediators in United Kingdom – England and Wales

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International divorces in England and Wales

Divorce and dissolution, financial remedies (the resolution of finances following divorce/dissolution) and child arrangements are treated in the jurisdiction of England and Wales as entirely separate matters, with their own specific procedures, and different lawyers may specialise in one or multiple of those.

It is important to note from the outset that in this jurisdiction it is possible (although usually not advisable) to divorce without having dealt with any associated financial claims that arise on divorce. Likewise, there is no need for a court to determine arrangements for children at the same time as the divorce or financial proceedings and the court will not become involved unless there is a dispute.

Definitions

In addition to marriages, family relationships in England and Wales can also be formalised by way of ‘civil partnership’. Civil partnerships were originally created through the Civil Partnership Act 2004 to extend recognition and rights and responsibilities to same sex couples before same-sex marriage was allowed through the Marriage (Same Sex Couples) Act 2013. Parliament removed the requirement for both parties to be of the same sex in 2019, and so civil partnerships are now an alternative to marriage available to both same-sex and opposite-sex couples.

Whilst marriages are terminated through a divorce, civil partnerships are terminated through a dissolution. The two of them are treated in the same way under the laws of England and Wales, and therefore references to ‘divorce’ or ‘marriage’ below should also be read to include ‘dissolution’ and ‘civil partnership’.

Starting the divorce procedure

Both child arrangements and financial remedies can be agreed outside of Court through negotiations or mediation (although financial agreements must always be formalised by way of a consent order approved by the Court to allow it to be legally binding), but it is not possible to divorce in England and Wales without engaging the Court.

The law on divorce changed on 6 April 2022 through the Divorce, Dissolution and Separation Act 2021, introducing a no-fault system in England and Wales. This was aimed at reducing the potential conflict amongst divorcing couples. As a result, there is no longer a requirement to justify to the court why it is claimed the marriage has irretrievably broken down i.e. one party does not need to blame the other.

The only ground for divorce in England and Wales is the irretrievable breakdown of the marriage, and the Court will now be satisfied with the parties confirming that to be true when submitting the application. No supporting evidence is required.

Under the new law, it is no longer possible for anyone to dispute the divorce, except in limited circumstances, such as: the marriage not being valid from the beginning, the marriage having already been ended (e.g. in a different jurisdiction), or the court not having jurisdiction to deal with the application.

The procedure for the divorce consists of three main steps:

• Making the application online through the divorce portal, which can be done on a joint or sole basis, and paying the Court fee for the application;

• Applying for a conditional order confirming the parties still wish to divorce and that the information provided in the application remains true (20 weeks after the application was issued). This is where the Court consider the divorce application and determine whether the applicant is entitled to a divorce);

• Applying for the final order confirming the situation has not changed since the conditional order (six weeks and a day after the conditional order was made). The final order brings a marriage to an end.

The respondent has 14 days to acknowledge service of the divorce application and confirm whether they wish to defend the application. If they do wish to defend it, they must subsequently file an Answer to the divorce and the matter will be listed for a hearing.

Jurisdiction

Jurisdiction is a key point of consideration for all parties wishing to apply for a divorce, and especially for international couples.

The Courts of England and Wales will have jurisdiction to determine a divorce application only in the following circumstances:

• Both parties to the marriage are habitually resident in England and Wales;

• Both parties to the marriage 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;

• It is a joint application and either applicant 1 or applicant 2 is habitually resident in England and Wales;

• The applicant is habitually resident in England and Wales and has resided 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 resided there for at least six months immediately before the application was made;

• Both parties to the marriage are domiciled in England and Wales;

• Only the applicant / applicant 1 / applicant 2 / respondent is domiciled in England and Wales.

• For civil partners or same sex marriage only, if none of the above apply, the parties registered as civil partners of each other in England or Wales or, in the case of a same sex couple, married each other under the law of England and Wales and it would be in the interests of justice for the Court to assume jurisdiction in this case.

Habitual residence is the place in which your life is mainly based. You must be settled there and intend to stay settled there. Domicile is the place of your permanent home and either you currently live there or you intend to return there. It is not the same as tax domicile.

Cohabitants

There is expectation that the law surrounding cohabitation will be changed in the coming years. However, under the current law, cohabitation in itself, regardless of how long and whether or not there are children of the couple, does not create any rights for one party in respect of the other’s assets.

At the point of separation, the parties may have a claim under Schedule 1 of the Children Act 1989, for the benefit of any children of the family, and / or under the Trusts of Land and Appointment of Trustees Act 1996, in respect of property. There is no entitlement to spousal maintenance or sharing of assets otherwise.

If the parties have registered their partnership abroad in a way that is not through marriage, this may be recognised automatically in England and Wales as a civil partnership, not requiring it to be registered again in this country.

Enforcement of foreign orders

The recognition and enforcement of foreign orders in England, and the enforcement of English orders in other jurisdictions depends on the relevant country. Since the UK formally left the European Union in 2020, Brussels II no longer applies in this country and so the Court will look at other treaties and regulations. Specific advice on how English orders will be applied in the relevant jurisdictions should be sought from experts in that jurisdiction.

Financial remedy proceedings

The law in England and Wales does not provide for an elective asset regime, as is common in other countries, neither does it have a process through which an overseas elected regime is directly applied. Prenuptial and postnuptial agreements are not binding and may only serve as evidence of the parties’ intentions to the Court, which has ultimate discretion. However, they are often considered relevant to the division of assets and could be relied on by the court. One of the most recent reported cases on this point is the case of MN v AN [2023] EWHC 613 (Fam), decided in 2023, where Mr Justice Moor upheld a prenuptial agreement that he regarded as fair and met the wife’s needs. Therefore, parties should be careful in deciding whether to enter into a pre or post nuptial agreement and whether, if the Court finds it appropriate, they would wish to be bound by it upon a future separation.

The starting point in a divorce is that matrimonial assets (those built up during the relationship via the parties’ endeavours) should be divided equally unless there is good reason not to. Non-matrimonial assets (those deriving from a source unconnected with the marriage e.g. an inheritance) may be ringfenced. However, the ringfencing is not determinative as this type of assets can be invaded in order to meet the parties’ financial needs.

In determining how to exercise its powers, the Court will consider the factors under section 25 of the Matrimonial Causes Act 1973, and in particular the following:

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

If there are children of the family, the following also apply:

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

(e) the considerations mentioned in relation to the parties to the marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) listed above.

While the English Courts do not have jurisdiction to make orders against international assets, it can order the parties to share, transfer or dispose of them as part of the financial order it makes. The implementation and enforcement of such orders may require expert advice in the relevant jurisdiction and so both parties and practitioners must be sure to obtain the appropriate advice early on.

Financial relief after overseas divorce

Part III of the Matrimonial and Family Proceedings Act 1984 provides a procedure through which individuals who have had their marriage dissolved or annulled in a different jurisdiction, or who are judicially separated somewhere other than England and Wales, are able to apply to the English Courts for an order for financial relief. Permission from the Court is required before an application can be made and there are specific requirements and timelines in respect of domicile and habitual residence for the Court to have jurisdiction. It is critical to ensure that the correct basis is used when applying.

An application under Part III should not be regarded as an opportunity for “forum shopping” (i.e. selecting a country to deal with the divorce on the basis of it providing the most advantageous financial outcome) and the Court has a duty to consider whether England and Wales is the appropriate place to determine the matter.

If the Court is not satisfied that England and Wales is the appropriate forum, it should dismiss the application. If, however, it is satisfied, then the proceedings can progress in a very similar way to ‘normal’ financial remedy proceedings under domestic law. The Court will require full and frank disclosure from both parties as well as consideration of the factors under section 25 of the Matrimonial Causes Act 1973. The Court will be able to make any financial provision orders, property adjustment orders and pension sharing or pension compensation orders as it would have the power to under the 1973 Act.

Children

Child Maintenance

Where both parents are based in England and Wales, they can use the Child Maintenance Service to calculate, collect and pay out child maintenance. The Child Maintenance Services calculation is limited to an annual income from the paying parent of up to £156,000. If the parent’s income exceeds that limit, an application can be made to the Court for a top up payment under Schedule 1 to the Children Act 1989. Other claims may be made for the benefit of a child under Schedule 1 including for lump sum payments, housing provision and educational expenses.

Where the paying parent does not reside in England, child maintenance can only be dealt with through the Court.