by John King

These days more and more people from the UK are working abroad, either permanently or on long-term contracts. Many are choosing to retire to a home in the sun.

Unfortunately the latest Government statistics show that just over thirty-five percent of marriages break down, and whilst it is bad enough to go through the upset and trauma of separation and divorce in the UK, the problems for expats are very much worse in many cases.

You feel somehow disconnected from the help you could obtain in the UK, the Citizens Advice Bureau, the friendly local solicitor just down the road, the powers of the English courts and their ability to dispense swift and fair justice, and you really can't face the thought of going to a local lawyer, what with the language problems, the strange laws and customs, and you have heard that it takes years to get a divorce locally.

You may think that, because you are not currently a UK resident, you cannot use the English courts if the worst comes to the worst and you decide to get divorced. (Unfortunately this is true for those originally from Scotland or who believe they may be governed by Scottish law. In this case you'd need to take special advice from a Scottish solicitor).

The good news is that in most circumstances anyone originally from England or Wales can use the English Courts, on the basis that you are 'domiciled' in the UK. Domicile is a somewhat obscure legal concept but means, basically, that you have a 'legal connection' with England, and that the English courts therefore have jurisdiction to grant you a divorce for instance.

The House of Lords said recently that the test to be applied by divorce judges is, "was the connection with England of the parties and their marriage sufficiently close to make it desirable that our courts should have jurisdiction to dissolve their marriage."

As long as an English court is satisfied that England is one of the party's 'home country', then the court can deal with a divorce, even in cases where someone has lived abroad for many years.

Sometimes, however, there are problems and judges have been known to reject a divorce on the grounds that the Petitioner is not domiciled in the UK (even though the party concerned may think they are).

When this happens it is almost always because the judge will rule that the party has 'relinquished their domicile', usually because they have formed an intention to spend the rest of their days in their adopted country. In those cases the court will often find that the party has 'relinquished their domicile of origin, and adopted a domicile of choice'.

This legal 'snag' can be a problem if you have retired abroad with the intention of never coming back, and may mean that the UK courts cannot help you. In cases where the courts can help, however, most expats are surprised to learn how quick and uncomplicated a divorce can be these days. The average case takes around sixteen weeks, and neither party has to appear in court at any stage.

There are very few firms in the UK able to deal with this type of case, as much specialist knowledge is required, including such things as the EU Council Regulations on Divorce, and some other 'gems' from Brussels, especially 'Brussels II' and the very recent 'Brussels IIa' all dealing with 'Euro' aspects of cross-border divorce procedure, recognition of court orders between member states, and other things that you do not need to worry about once you have found a specialist in this type of work. Also, some of the firms that do this highly specialised type of work will give you a fixed-fee quote for the case, so you know exactly what it is going to cost, and won't get any nasty surprises at the end of the case.

Of course the divorce itself is only part of the story. If you have been together for a long time there may be property and other finances wrapped up in the marriage. You may therefore be wondering about how the matrimonial assets would be dealt with by an English court?

Firstly, the divorce courts do not deal with any of the matrimonial assets during the case itself, and will not do so until after Decree Nisi has been pronounced. Any financial or property disputes are then dealt with as an entirely separate case (an ancillary case), and even then only when the parties themselves cannot reach agreement.

Matrimonial assets cases should be avoided if at all possible, as they can take the best part of a year to their conclusion, you would have to attend at least two and possibly three court hearings, and they are very expensive indeed. By the time the average party has paid the court fees, solicitor's fees, barrister's fees, property valuer's fees, actuary's fees, forensic accountant's fees and more (all plus vat) he or she will need to have a very understanding bank manager. So, most solicitors will strongly advise you to agree, agree, agree, even if it means a compromise.

The biggest problem of all is that the English courts cannot make orders in respect of overseas assets except with the agreement of the parties, so cannot for instance order a house in France to be transferred to one particular party. This would have to be dealt with by a local lawyer.

Finally, you may also be wondering, "what about the children?" Well, custody has been abolished in the UK, as has 'access', and the divorce process no longer deals with disputes concerning children, nor do the courts have the power any longer to make maintenance orders for children except in very limited circumstances.

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This article was written by John King, expat divorce specialist with solicitors Woolley & Co.

More details for expats can be found online at www.divorce-lawfirm.co.uk including details of a fixed fee divorce service for expats.
John can be contacted by email - john.king@divorce-lawfirm.co.uk or on +44 (O)1332 676880.

11/5/07 submitted by Jilly - "Further to the article about divorce, I live in the Canary Islands. Had I divorced my husband in the UK, he would ALSO have been entitled to half my pension, in Spain he was not!"