The expat divorce process is often one of the most challenging aspects of modern separations. Reaching positive outcomes around children, finances, and division of assets is almost always particularly stressful and time-consuming. When you factor in the additional complexity that comes with different countries and jurisdictions— each one with its own divorce laws, languages, and customs — it can significantly add to the intricacy.
If your separation has an international dimension as you or your partner have emigrated, or expatriated, from your country of birth, prior knowledge is vital. This article will simplify your situation by covering the essential information in detail. It contains everything you need to know about the expat divorce process — from establishing legal ties to choosing the right jurisdiction — simplifying your journey to a more favourable separation.
How Does the Expat Divorce Process Work in Principle?
Despite the expat divorce process being complex, it can be simplified when condensed into three steps. The first is establishing in which legal systems, or jurisdictions, you are able to separate. The next stage is understanding which of those regions would be most receptive to your main objectives. Finally, you will need to file for divorce in said country.
While this might sound easy, the biggest challenge will be understanding how overseas courts will approach your case. This is perhaps best highlighted by the likes of same-sex marriages and civil partnerships, which will be recognised in some countries but not in others, thereby limiting your options. Similarly, you may find that each legal system has a very different way of addressing common features of separation, such as child arrangements or the division of both domestic and overseas property.
To further complicate matters, timing is also crucial, as taking too long to make a decision could result in your spouse filing first in a jurisdiction that is less favourable to your situation. Fortunately, decisions of this magnitude are greatly simplified by obtaining advice from a specialist in international divorce.
How Do I Know Where I Can Divorce as an Expat?
Some couples might assume they can only divorce in the country in which they were married. This often isn’t the case. Ordinarily, if your marriage is legally-recognised in your adopted home — and you have national, resident, or domicile status — that country will have the power to deal with your expat divorce.
To establish if you have a valid connection to the country you’ve chosen to separate in, you will usually need to meet one of three definitions. They are as follows:
- National: You were either born in this country, or have acquired nationality status from your parents, spouse, or adopted parents. The rules for nationality vary from one territory to another.
- Habitually Resident: Being an habitual resident means you spend most of your time in a country that isn’t your place of origin. Among other things, you could have a business, study, pay taxes, or own property in this region.
- Domicile: The primary types of domicile status are as follows:
- If you spend time in more than one country, your domicile is the place you officially call your permanent home.
- Your domicile of origin is automatically given at birth, i.e. you were born in England, so this is your domicile of origin.
- Domicile of dependency applies to under-16s and is derived from the status of their main caregiver.
- Finally, domicile of choice describes the place you’ve chosen to call home in adulthood.
If high net worth or business interests are key features of your separation, it’s crucial that you understand the implications of changing your domiciliary status. Amending this could have far-reaching consequences on factors like the tax you pay. Therefore, you should speak to a solicitor who specialises in both high net worth and expat divorces before making such a big decision.
Why Would You Choose England and Wales for an Expat Divorce?
Whether you’re a Briton based overseas, or have come to live in the UK, the English and Welsh legal system is widely seen as having certain advantages. These can include cost-effectiveness, fairer outcomes, and the speed of the process. However, context is paramount, as you still require a balanced understanding of possible outcomes in other applicable jurisdictions.
Here are the main reasons to choose England and Wales for your expat divorce:
- Fairer Outcomes: Unlike some countries, our courts don’t impose a single set formula to decide the likes of child custody, division of assets, and living arrangements. Instead, every relationship is viewed on a case-by-case basis, with the welfare of both spouses and their dependents being the overarching priority. This desire to ensure that everyone is treated fairly has established the UK as a more equitable country for many spouses to separate.
- More Economical: Because some UK-based family lawyers prioritise a more collaborative approach to divorce, it can be much cheaper — not to mention quicker — than the expat divorce process in other jurisdictions.
- More Empowering: Spouses are encouraged to find solutions that work for them. If communication is an issue, you will be expected to try methods of Alternative Dispute Resolution, such as family mediation. This can help you to reach robust long-term agreements.
- The Language: If you are exclusively an English speaker, you’ll need translators when divorcing overseas, to ensure no vital information slips by you. However, the likelihood of crossed wires is greatly reduced when you understand everything being discussed and can fluently challenge potential inaccuracies.
Additionally, if you decided to pursue divorce abroad — but are dissatisfied with the settlement — you might be able to apply for something called a Part 3 Claim. If the English and Welsh courts agree that the original financial agreement was unfair, they can adjust this to be more favourable.
Understanding the Merits of Different Jurisdictions
If you’re considering the merits of different legal systems, there’s no simple answer as to which is best for you. Because of the differences between one jurisdiction and another, the choice you make depends entirely on your personal circumstances. For example, some countries might be more advantageous for keeping a business than they would having custody of your child(ren).
Here are two examples of how Spain and the UAE — popular destinations for expat divorce among people of British origin — would tackle child arrangements and division of assets:
Divorce in the UAE
- Children: The mother usually gets automatic custody of any children, whereas the father is completely responsible for finances. For a man to have full-time responsibility for his children, he would need to prove that another female would be on hand full-time. Fathers have a legal right to access, with visits usually taking place twice per week.
- Division of Assets: Only assets signed by both spouses will be divided equally on divorce. Otherwise, anything in one person’s name will be regarded as their personal property.
Divorce in Spain
- Children: Both parents have an equal say in child arrangements, so can jointly decide schooling, healthcare, and custody.
- Division of Assets: There are regional variations in Spanish family law, which will dictate how assets like property are divided. Foremost is the community of property regime, which is broadly applicable in numerous areas, including Andalusia, Aragon, and Madrid. Under this regime, each spouse is entitled to a 50/50 split of shared assets. However, under Catalan law, this will depend upon whose names were on the documents at the time of divorce.
These examples are purely designed to highlight the implications of choosing one jurisdiction over another. Any decision of this magnitude should always be taken with full legal guidance to ensure that it is in your best interests.
Choose Lowry Legal For Trustworthy Support With Expat Divorce
For anyone beginning the expat divorce process, timely and comprehensive legal representation is a must. An established international divorce expert will give you the best possible chance of having your case heard in a legal system that aligns with your biggest priorities. These are the kind of decisions that need to be taken quickly — without compromising on accuracy. With so much at stake, it’s crucial that nothing is left to chance.
Lowry Legal will invest time getting to understand your main objectives, challenges, and wider background. We do this to make sure we’re always on the same page as we work towards a positive outcome for your case. Although we specialise in English and Welsh law, we have contacts across the globe, and can help you to find a suitable overseas lawyer when required.
A leading specialist in high net worth divorce, we excel at untangling even the most complex situations.
Make an enquiry today to speak to a member of our team.
