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Habitual residence and domicile

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These are legal concepts which determine whether or not you can divorce in England.  The main questions people ask if they have married abroad are:

Is my divorce “legal” in England?

The answer to this is more often than not yes.  For a foreign marriage to be valid, it must have taken place in accordance with the local custom and law of the country where the marriage took place. 

I married abroad:  Can I divorce in England?

You may well be able to take advantage of the divorce legislation in England and Wales if you married abroad, but you need to consider the other implications of divorcing in England.

Whether or not you can divorce in England will depend upon legal concepts such as domicile and habitual residence.    In very broad terms, if either you, or your husband, are living in England or Wales,  you will probably be able to divorce in England.  Sometimes, you can still divorce in England even if neither of you are living in England or Wales, and are living in another country “temporarily“ with the intention of returning to live in England permanently, and/or both of you were born in England.  Domicile and habitual residence are complex legal concepts and many cases depend entirely upon their own individual set of facts.

Sometimes, it is more advantageous financially if you divorce in another country.  If for example you have a Pre-Nuptial Agreement entered into abroad, and that Pre-Nuptial Agreement would be legally recognised by the Court in the country in which you married, it may be that if you want to protect assets, that you would be better off financially divorcing abroad. 

Sometimes, it is more advantageous in terms of legislation relating to children if you divorce abroad.  Many European countries support an ethos of “shared residence” legislatively, which England does not currently, albeit that some case law does support this principle. 

England has been dubbed the “divorce capital of Europe” because of the wide ranging discretionary powers that the Court has.  Often one party will find it significantly more advantageous to them to divorce in England.

If you are faced with the situation whereby you can divorce in more than one country,  you need specialist legal advice.

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