Living Overseas: am I entitled to divorce in the jurisdiction of England and Wales?
Even if you are not currently living in England and Wales, you may still be able to divorce in this jurisdiction. Rules about how divorce and financial outcomes are dealt with vary enormously between countries, so it is important to obtain legal advice in each country that you are able to divorce, to determine which may produce the best outcome for you and your family.
Take family law advice from a lawyer in each of the countries in which you may be entitled to divorce. Contact us to discuss divorce in the jurisdiction of England and Wales.
If you or your spouse issue a divorce petition in England and Wales, and either you or your spouse do not accept that you are entitled to divorce in this jurisdiction, the court may need to make a determination as to whether you or your spouse or both of you have domicile in this country. You may be allowed to proceed if you or your spouse are domiciled in this country, if none of the EU member countries would be a more suitable venue to consider the case.
The court will need to decide whether either of you are domiciled in England and Wales. They will determine where you were born. This will establish your domicile of birth. You may have decided to change your domicile since your birth, and you may now have a “domicile of choice”.
“As a domicile of origin is more enduring and more adhesive than a domicile of choice, more powerful and cogent facts (proved to the balance of probability) are required before it can be concluded that the domicile of origin has been displaced by a domicile of choice.” Para 11 Sekhri v Ray  EWHC 2290 (Fam)
To establish whether England and Wales has become your domicile of choice, the court will look at where you are working, living, submitting tax returns, and any other relevant facts to help establish a picture of your living arrangements.
To determine whether you have later abandoned a domicile of choice, the court will apply this test:
“A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.” (Dicey)
At that point you may acquire a different domicile of choice or revert to your domicile of origin. If you need help working out which country you’re domiciled in, you can read chapter 5 of UK HM Revenue and Customs’ guidance on ‘Residence, Domicile and the Remittance Basis’.