If you are living outside of England and Wales when your marriage breaks down, the question will arise as to whether you are able to divorce in the English courts. Much the same question will have to be asked if you are from another country where you were married but have made your home, and now reside in England and Wales.

The EU Regulation states that the English courts will only be able to deal with your petition if, and only if, one of the following descriptions applies to your circumstances:

1. Both the petitioner and the respondent are habitually resident in England or Wales;
2. The respondent is habitually resident in England or Wales;
3. The petitioner and the respondent were last habitually resident in England or Wales and one of them continues to reside there;
4. The petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued;
5. The petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued;
6. The petitioner and the respondent are both domiciled in England or Wales or if (but only if) no court of an EU contracting state has jurisdiction;
7. The petitioner or the respondent is domiciled in England or Wales on the date when the petition is issued.

Using the English legal system is usually much quicker, cheaper and more convenient than attempting to use the local jurisdiction. In many instances expats would anyway be prevented from doing so. A word of warning, however.

There are limitations on what can be ordered through the English court system. Any foreign owned property will not come under the jurisdiction of the English courts. A divorce court therefore cannot make orders in respect of overseas assets unless the other party is in agreement. This means that, for instance, the court cannot order that a house in France be transferred to one particular spouse if this is disputed. Ownership would have to be dealt with by a French lawyer, which would of course involve additional cost.

The first and most important question to be answered is where you are ‘domiciled’. Domicile is a legal term which considers a number of factors including where you were born, where you are living now and your intentions for the future. It will be the deciding factor in determining which legal system has jurisdiction to deal with a divorce petition.

Residence and domicile are not the same thing. You may well have lived in Spain for many years and be a resident of Spain  but still be domiciled in the UK. Indeed this will often be the case. It can be a rather obscure legal concept, but basically means that you have retained a legal connection and fixed intention to return to your country of domicile. It is determined primarily by intent. A good indication can be where a person registers to vote.

In broad terms, an individual acquires their country of domicile from their father. In certain circumstances, it is sometimes possible for an individual to change their country of domicile, if they change the place they regard as their permanent home, although this requires more than merely relocating to another country.

As domicile is distinct from nationality or residence, whilst an individual can be resident in two countries at one time, one cannot be domiciled in two countries at any given time.

As you cannot have domicile in more than one country, your domicile in England and Wales will not usually be questioned, unless you have relinquished your domicile by:

• taking out foreign citizenship or naturalization; or
• cutting all ties with England and having the intention to remain in your chosen country for the rest of your days.

Therefore, in most circumstances, anyone originally from England or Wales can use the English courts, on the basis that they are ‘domiciled’ in the UK.

The House of Lords has said that the test to be applied by divorce judges should be ‘was the connection with England of the petitioner sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage?’ As long as an English court is satisfied that England is the petitioner’s ‘home country’ and he has not ‘abandoned’ his home country, then the court can deal with a divorce, even in cases where someone has lived abroad for many years.

It has been known for some judges to query a divorce, at the decree nisi stage, on the grounds of domicile, where there is a suspicion that the petitioner has ‘relinquished their domicile’, and formed an intention to spend the rest of their days in their adopted country, i.e. that the party has relinquished their ‘domicile of origin’, and adopted a ‘domicile of choice’.

Should this happen, the judge will ask a petitioner to ‘file further evidence of domicile’ before granting a decree nisi. In the vast majority of cases, however, the jurisdiction of the court will not be questioned.

Remember that the law in England and Wales is different from the law in Scotland. If you and your spouse, or one of you, consider yourself to be Scottish citizens, you both normally live in Scotland, lived in Scotland during the marriage or have a stronger connection with Scotland than England, it could well be that you will have to present your divorce petition to a Scottish court.