What you Need to Know About Getting an Expat Divorce in the UK
If you’re living and working abroad and your marriage breaks down, you may be thinking about going ahead with separation and divorce back home in the UK, rather than in the local courts. This is a key consideration for expatriates in the UK and maybe British expats. There are many issues to consider when making this decision, which I covered in a previous Expat Info Desk blog on March 17, such as whether a UK court has jurisdiction (the authority to take your case) and whether you can achieve a better outcome.
As well as this, there is another issue to take into account before making a final decision about where to proceed – do you actually have a legal basis for asking a court to grant a divorce?
While it may be blindingly obvious to you that the marriage is over, the courts require you to meet specific criteria to be divorced. These are known as “grounds of divorce,” and they vary across countries, even within the UK. If you don’t have grounds, your application for divorce will be unsuccessful – costing you money needlessly and risking your spouse winning any jurisdiction race.
What are the grounds in the UK?
It’s always worth bearing in mind that Scotland and England/Wales have fundamentally different legal systems and numerous differences in their approaches to divorce.
In Scotland, the basis for divorce is the “irretrievable breakdown” of the marriage. This must be demonstrated concerning one of four grounds. The first two – adultery and unreasonable behavior – are known as “fault” grounds because they rely on the other spouse’s bad behavior. The other two are known as “no-fault” grounds because they are based on the date of the separation rather than the reasons for it. You can be divorced after living apart from your spouse for one year (if he/she consents) or two years (in which case you don’t need consent).
The framework in England and Wales is similar in terms of the fault grounds, but the qualifying period for no-fault divorce is two years (with consent) or five years (without). You can also divorce in England and Wales on the ground of “desertion,” although this is rarely used. This ground does not exist in Scotland.
How unreasonable is unreasonable?
A common question asked of family lawyers is what “unreasonable” behavior actually means. Across the UK, it’s defined as conduct on your spouse’s part, which means it would be unreasonable to expect you to continue living with them. There is always going to be a degree of subjectivity involved. Still, a history of uncooperative behavior such as consistently undermining you, being rude or dismissive, and not engaging in family life can qualify. You do not necessarily need to prove more serious conduct like domestic abuse, infidelity, and misuse of alcohol or drugs. If you’re not sure whether or not you could prove unreasonable behavior, an experienced international divorce lawyer will be able to advise you.
It’s important to remember that unreasonable behavior is relevant only to the granting of a divorce. It does not mean that the court will take behavior into account when making decisions about finances. This can be difficult to accept if you are, for example, legally obliged to pay maintenance to a spouse who has behaved very badly towards you, but the issues are legally distinct.
How does this all work in practice for expats in the UK?
In Scotland, divorce is often the last step in the process, rather than the first. Many couples negotiate and agree on all financial and child-related matters and put that into a formal separation agreement. One spouse can then start a divorce action because it won’t be opposed, and consent will be given if required. However, if negotiations break down, or you need to raise an action urgently, you will still need to base it on a fault ground unless you have been apart for at least two years. You will also need a witness who can corroborate some or all of what you say about the grounds.
Divorce tends to operate a little differently in England since obtaining a divorce and resolving finances is more likely to run in parallel. While it’s still possible to negotiate and agree on the finances first, it’s more common to raise a divorce petition at the outset. As most couples don’t want to wait five years to sort out their separation, this means they will need to rely on a fault ground. Because this involves describing the behavior complained about in the petition, this can make the process more acrimonious.
Until recently, the approach recommended by Resolution (the association for family lawyers in England and Wales) was to keep the behavior allegations “mild and uncontentious.” However, recently, the Court of Appeal refused a divorce based on unreasonable behavior even though it was accepted that the marriage had become “desperately unhappy,” so the bar may have been raised regarding what behavior needs to be proven.
InTheelief that this focus on behavior does not always create the right environment for constructive negotiations about children and finances, Resolution is currently campaigning for a change in the law to make no-fault divorce easier in England and Wales.
Why might this matter to me?
While negotiation is usually the most cost-effective and least stressful approach, it doesn’t work in every case. It’s therefore important to know from the start whether or not you have grounds to ask the court to divorce you as a means to get a divorce action started if you need to. This is especially vital if you live abroad, and there is more than one jurisdiction that can deal with your case.
If you get it wrong and raise in the wrong country in the worst-case scenario, your spouse could beat you into court in the other. An experienced international divorce lawyer can talk you through these options – which could save you from making an expensive mistake.
This article was written by Dianne Millen, a senior family law solicitor with Morton Fraser LLP, a firm with expertise in advising on international divorce and litigating in England/Wales and Scotland. Talk to a legal advisor before taking any actions related to diverse or any legal matters.