England and Wales is seen as one of the more advantage countries to divorce in. London (specifically) is dubbed as the “divorce capital of the world” due to its generous financial settlements, which attracts international spouses.
What is required to divorce in England and Wales?
To apply for a divorce in England and Wales, at least one of the recognised jurisdiction criteria must be met. In broad terms, this means showing that one or both parties have a sufficient connection with England and Wales through habitual residence or domicile. The criteria include:
- Both parties are habitually resident in England and Wales.
- Both parties were last habitually resident in England and Wales, and one of them still lives here.
- The respondent is habitually resident in England and Wales.
- The application is made jointly and one of the parties is habitually resident in England and Wales.
- The applicant is habitually resident in England and Wales and has lived here for at least one year before making the application.
- The applicant is domiciled and habitually resident in England and Wales and has lived here for at least six months before making the application.
- Both parties are domiciled in England and Wales.
- Either party is domiciled in England and Wales.
What is habitual residence?
Habitual residence is the place where a person has established the main focus of their day-to-day life. The court will look at all the relevant facts, including where the person lives, works, spends time, and has social and family connections. It is usually the place where the person has become settled and has integrated into everyday life. There is not a minimum time period that a person needs to spend in a country before they are deemed as habitually resident there, each case will depend on its specific facts.
What is domicile?
Domicile is more complex than habitual residence. In simple terms, it refers to the country a person regards as their permanent home. A person can only have one active domicile at any one time, although their domicile can change if their circumstances and intentions change.
‘Domicile of origin’ is usually acquired by a person at birth. If the parents were married when the person was born, it is generally the father’s domicile that applies. If the parents were not married, or if the father had died before the birth, it is generally the mother’s domicile that is applied.
‘Domicile of dependence’ applies to children under 16 and usually follows the domicile of the relevant parent. If the parents separate, the child’s domicile may depend on which parent they live with. If the child spends time in both households, the position can be fact-specific.
‘Domicile of choice’ can be acquired by a person aged 16 or over. To establish a domicile of choice, the person must live in a country other than their domicile of origin and intend to remain there permanently or indefinitely. Both residence and intention are required.
If a person acquires a domicile of choice, their domicile of origin may stop applying for that period. However, if the domicile of choice is later lost and no new domicile of choice is acquired, the domicile of origin can revive.
It is possible, for example, for someone to live in England while working abroad if the evidence shows that England remains their permanent home. An existing domicile is presumed to continue unless it is proved that a new domicile has been acquired. The burden of proving a change of domicile rests with the person asserting it.
What if there is a dispute about a person’s habitual residence and domicile?
The outcome of such cases can have important implications as to whether a divorce can proceed here, which may then have implications for the extent of the financial settlement that can be obtained arising from divorce.
Habitual residence and domicile disputes are highly fact-specific. The parties will be required to provide evidence to support their case. The court will consider the available evidence to decide whether a person is not only living in a particular country, but also intends to remain there permanently or indefinitely. Relevant factors may include:
- Whether the person owns or keeps a home in that country.
- Where the person spends most of their time.
- Whether the person has become a citizen of that country.
- Where the person works.
- Where any children attend school.
- Where the person pays tax.
It is important to remember that every situation is unique and benefits from tailored legal advice. Our divorce solicitors at Ward Hadaway are able to provide advice that is specific to your individual circumstances. If you would like to discuss your circumstances in more detail, our team is here to help. Please contact one of our offices to speak with a solicitor and take the next step with confidence.