International Divorce Laws: Which Country's Courts Decide?

Part of: International Family Law Specialists

International divorce laws decide which country’s courts can end your marriage, and where the divorce starts can change how your money is shared. A court in England and Wales can normally only deal with your divorce if you or your spouse meet one of the tests in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 on the day you apply. Our international family law specialists assist and advise on divorce when couples’ lives cross borders.

This page is for you if you married abroad, live in a different country from your spouse, or fear they will start a divorce somewhere else first. It covers the law of England and Wales for divorces started after the Brexit transition period ended on 31 December 2020, and flags the traps to ask about before anyone applies.

Reviewed by: Iblal Iqbal, Partner & Family Law Strategist, Kabir Family Law

What makes a divorce international?

A divorce is international when your marriage has links to more than one country. International divorce laws are the rules each country uses to decide two things: whether its courts can deal with your divorce, and whether it will accept a divorce from somewhere else.

Links like these can give more than one country’s courts a say in your case:

• One of you has moved to another country for work or family.
• You hold different nationalities, or one of you has two passports.
• You own a home, savings or a pension in more than one country.

That is where the choices, and the risks, begin. If you have children, their arrangements can raise separate cross-border questions, and our guide to international child abduction covers the most urgent of these.

Which country’s courts can hear an international divorce?

In England and Wales, the court can normally only hear your divorce if one of these grounds applies on the date of the application (DMPA 1973, s.5(2)):

• you are both habitually resident here;
• you were both last habitually resident here, and one of you still lives here;
• your spouse, as the respondent, is habitually resident here;
• in a joint application only, either of you is habitually resident here;
• you, as the applicant, are habitually resident here and have lived here for at least a year before you apply;
• you are domiciled and habitually resident here, and have lived here for at least six months before you apply;
• either of you is domiciled here.

Habitual residence and domicile are legal tests with their own meanings. They are not simply the address on your post, and working out which one fits you can be harder than it looks. Same-sex couples have a matching set of grounds (GOV.UK guidance).

Other countries’ international divorce laws set their own tests. So the courts of two countries can sometimes both be able to hear the same divorce, and that is when the question of where to start really matters.

Can you divorce in England and Wales if you married abroad?

Yes, if you meet the conditions. The government says you can get divorced here if you have been married for over a year, your relationship has permanently broken down, and your marriage is legally recognised in the UK. The court also needs one of the grounds above. If there is any doubt about whether your marriage is valid in the UK, raise it before you apply rather than after.

Our guides to expat divorce in Germany and British expat divorce in the UAE go into more detail if one of you lives there.

Does it matter which country starts the divorce first?

It can. Before Brexit, EU rules required the court that received a case second to pause it. For divorces started after the transition period, courts here use a different test.

If a divorce about your marriage is under way in another country, the court here can pause (stay) your case. It can do this when the balance of fairness, including convenience, points to the other case being dealt with first. The court looks at all the relevant factors, such as witnesses, delay and cost (DMPA 1973, Sch 1, para 9).

So applying first does not settle the matter here. Timing still counts, though, because a case under way abroad can shape what the court here does next. Courts abroad also apply their own rules about which case goes first. Our guide to the Brussels II rules after Brexit explains the wider change.

Why can international divorce laws change the financial outcome?

International divorce laws matter most when it comes to money. A court in England and Wales looks at all the circumstances, and it gives first consideration to the welfare of any child of the family under 18 (MCA 1973, s.25(1)). It then weighs a set list of factors (s.25(2)), including:

• each person’s income, property, needs and responsibilities;
• the family’s standard of living, your ages and how long the marriage lasted;
• what each of you gave to the family, including looking after the home.

Courts in other countries follow their own rules on sharing property, marriage agreements and ongoing support. So the same marriage could end with a very different outcome depending on where the divorce takes place.

Where you divorce can also affect a prenuptial agreement you signed, and how easily an order can reach property in another country. If you fear money could be moved out of reach, read about a freezing order during a divorce. For the wider picture, see our page on financial settlement after divorce.

Which route could fit your international divorce?

International divorce laws leave you three main routes to weigh, each with its own tests and risks.

Will a divorce granted abroad count in England and Wales?

The UK’s own international divorce laws decide whether a divorce from abroad counts here. It counts only if it passes the recognition rules in Part II of the Family Law Act 1986 or another Act (s.45). For a divorce obtained through court or other proceedings, two things must be true (s.46(1)):

• the divorce is effective under the law of the country where it took place; and
• when the proceedings began, either of you was habitually resident in, domiciled in, or a national of that country.

A divorce obtained without proceedings faces stricter tests. For example, neither of you can have been habitually resident in the UK for the whole year before it (s.46(2)). And a divorce obtained anywhere in the British Islands, including a religious divorce, only counts if a civil court granted it (s.44(1)).

Even when the tests are met, a court can still refuse to recognise a divorce. Reasons include a spouse getting no reasonable notice, having no fair chance to take part, or recognition being clearly against public policy (s.51(3)). For EU divorces started after the transition period, the same rules apply as for any other country (GOV.UK guidance). If you are unsure whether a divorce abroad counts, a court here can, in some cases, make a declaration about it (s.55).

Can you claim money here after an overseas divorce?

Sometimes. One of the UK’s international divorce laws, Part III of the Matrimonial and Family Proceedings Act 1984, lets either spouse ask a court here for financial orders after an overseas divorce that counts in England and Wales (s.12(1)). However, there are hurdles at each stage:

• Permission first. You need the court’s leave, and the court only gives it if there is “substantial ground” for the application (s.13(1)).
• A link to England and Wales. One of you must be domiciled here, or have been habitually resident here for a year, at one of two set dates. Otherwise, one of you must still have an interest in a home here that was once your family home (s.15(1)).
• The right place. Before it makes an order, the court must be satisfied that England and Wales is an appropriate place for it. It looks at your links to each country, any order made abroad and whether an order here could be enforced (s.16).
• A new marriage can end the claim. If you have remarried or formed a civil partnership since the overseas divorce, you cannot apply (s.12(2)).

These claims turn on detail. It helps to get advice before you agree anything abroad, because the court here looks at what you received there and why.

What happens when an international divorce starts here?

If a court here can hear your international divorce, the law sets the same core steps as for any divorce in England and Wales, with a few extra points to watch. This outline shows the order, not every task.

1. Check the ground on the day you apply. The court tests its power to hear the case on the date of the application, so a move abroad just before you apply can matter (DMPA 1973, s.5(2)).
2. Tell the court about any case abroad. You must give details of any case about your marriage that you know is continuing in another country (Sch 1, para 7).
3. Apply with the right papers. You need your marriage certificate or a certified copy, plus a certified translation if it is not in English (GOV.UK).
4. Serve your spouse abroad in time. You do not need the court’s permission to serve papers abroad, but you must take the required step within 28 days after the court issues the application (FPR 6.41 and 6.41A).
5. Wait for the conditional order. Neither of you can normally confirm you want to continue until 20 weeks after proceedings start (MCA 1973, s.1(5)). Our guide to the 20-week reflection period explains this wait.
6. Deal with money before the final order. The final order normally cannot come until 6 weeks after the conditional order (s.1(4)). If you want a legally binding arrangement for money and property, GOV.UK says to apply to the court for it before you apply for the final order.

Where do you stand under international divorce laws? A quick check

Use this to see what you already know. It will not tell you where to apply, because that depends on the international divorce laws of each country involved and on facts only you can give.

How we assist and advise on an international divorce

Our specialists assist and advise couples facing an international divorce. We explain how international divorce laws apply to you: whether a court here can hear your case, how a court here would approach your finances, and whether a divorce from abroad is likely to count. We also help you prepare for each court step in England and Wales.

A free initial consultation is a conversation with one of our specialists, who gives you initial advice tailored to your circumstances. It does not include drafting or reviewing documents. Before the call, it helps to note where each of you has lived and when, and whether a case has started anywhere. If children are involved, we can also talk through taking children abroad and related orders.

General information about the law in England and Wales, not advice on your circumstances.

Frequently asked questions

Expert Tip

A question we hear often is whether to wait and see if a spouse abroad starts a divorce first. Waiting can cost you choices. Once a case is under way in another country, the court here can pause a later case if fairness points abroad, and the financial rules there may be very different. Check where you can apply, and what each route could mean for your finances, before either of you starts.

Garry Steedman, Family Law Consultant (Divorce, Children & TOLATA)