International Divorce for Same-Sex Couples

The differing attitudes towards same-sex marriage and same-sex divorce around the world mean that rights for expat couples can vary significantly between countries. While LGBT rights have made significant progress in some nations, a surprising number of states still fail to recognise same-sex marriages. Some countries, particularly within the Middle East, forbid same-sex marriages altogether. Same sex expat couples living overseas, or same-sex international couples living in the UK may have concerns about where to divorce. This article explains the divorce process for same-sex couples living overseas, and for international couples living in the UK.

Same-Sex Marriage in England

On 17th July 2013, the UK Parliament passed the ‘Marriage (Same Sex Couples) Act’ which allowed the first same-sex marriages to take place within England less than a year later. Prior to this, same-sex couples had been able to enter civil partnerships since 2005 which gave couples the same legal rights as marriage.

Unfortunately, just as marriages between heterosexual couples irreconcilably break down, so too do marriages between same-sex couples. This can pose particular difficulties for expat couples residing in countries which fail to recognise same-sex marriage and therefore permit same-sex divorce.

If you or your spouse are a British expat facing this reality, it may be worth seeking the jurisdiction of the courts of England & Wales. If eligible, you will be able to embark on a divorce process virtually identical to the that used by heterosexual couples.

Can Same-Sex Expat couples divorce in England?

The courts of England & Wales have jurisdiction in proceedings of married same sex couples where:
(a) both spouses are habitually resident in England and Wales;
(b) both spouses were last habitually resident in England and Wales and one of the spouses continues to reside there;
(c) the respondent is habitually resident in England and Wales;
(d) the petitioner is habitually resident in England and Wales and has resided there for at least one year immediately preceding the presentation of the petition;
(e) the petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately preceding the presentation of the petition; or
(f) both spouses are domiciled in England and Wales.

If none of the above grounds apply, an application may be made in England and Wales on the basis of the sole domicile of either you or your spouse. This is known as ‘residual jurisdiction’. There are however restrictions on the financial relief available in the event of an application based on this final residual ground.

Domicile is a legal concept which differs to residence and nationality. Under English law, no person can be without a domicile and can only have one domicile at any time. Put simply, it is the county a person has as their permanent home. A person does not stop having their home in a country just because they are temporarily resident elsewhere. Even when they leave a country permanently, they do not immediately stop having their home there until they act according to that intention. As such, it is possible to be habitually resident in one country but to retain domicile in another.

Grounds for Same-Sex Divorce

Grounds for divorce are the accepted reasons for proving that a marriage has irreconcilably broken down. These are an essential condition for divorce proceedings and must be proved in both same-sex and heterosexual relationships. In fact, the only difference when it comes to same-sex marriages is that adultery cannot be used as a ground for divorce. This is simply because the legal definition of adultery involves one person engaging in sexual activity with a member of the opposite sex and is probably inapplicable. Although for a bisexual spouse it seems unfair that this could not be used as a ground against them if they went on to have an affair with someone of the opposite sex.

Apart from this, the grounds for divorce remain the same and include behaviour, desertion or a period of separation of either two years with both parties’ consent or five years if only one spouse wishes to get divorced. The ground of behaviour covers a wide range of factors and can be used where there has been either physical, mental, verbal or emotional abuse. It can also cover issues in relation to substance abuse or financial mismanagement. Importantly, given the absence of adultery as a ground for same-sex couples, any form of infidelity can also be filed under the ground of behaviour.

Same-Sex Divorce: The Process

Once the courts of England & Wales have seized jurisdiction and grounds have been established, the divorce process for a same sex expatriate couple would essentially be identical to that of a heterosexual couple based in England. The spouse seeking the divorce (the petitioner) files a divorce petition with the court. The court then reviews the petition and providing it is acceptable, serves the petition upon the other party (the respondent). The respondent can then either oppose the divorce, leading to court proceedings, or agree with the petition meaning it will go before a judge on paper to pronounce decree nisi. Once decree nisi has been pronounced, the petitioner must wait six weeks before applying for decree absolute which formally ends the marriage. This process would usually take between 3-6 months, but timescales are volatile.

The court deals with the financial aspects of divorce separately from the divorce itself. However, financial claims also follow the same process for same-sex partners as heterosexual couples. While a financial settlement can be agreed outside of court, matters can often become contentious and complex making court intervention necessary. The court can make a range of financial remedy orders and can order the transfer of property, assets, the payment of a lump sum or pension sharing orders. The court can also maintenance for a spouse or decide to order a ‘clean break’ which will comprise of one capital payment with the aim of ending the financial relationship between the parties.

The court will decide upon the award it makes on a case by case basis, considering the individual circumstances of each case. In applying its discretion, the court will consider factors such as the length of marriage, the couple’s standard of living during the marriage and the income, property and earning capacity of each party. All contributions to the marriage are seen as equal and the court will consider the needs, obligations and responsibilities of each party moving forward when making its award. Fairness is the court’s overriding criterion and the court applies the sharing principle in order to achieve this.

As with any divorce, it is highly recommended that you seek legal advice before embarking upon the divorce process. While the process explained above may seem simple, there are often pitfalls along the way which are best traversed with the help of experienced legal professionals.

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