Is my Divorce Recognised in England?

For British expats considering where to divorce, it is extremely important to consider whether that divorce will be recognised back at home in England. It is not true to say that a divorce is a divorce, and this is especially the case when considering religious divorces.

Why is it important for my divorce to be recognised in England?

The recognition of a foreign divorce can have implications on financial remedy proceedings. If the divorce was valid, but either a financial settlement was not agreed or that settlement was unfair, then an application may be made in the English court for a financial remedy following an overseas divorce under Part III MFPA 1984. In contrast to this, is the divorce was not valid in the eyes of the English court and therefore not recognised, then standard divorce and financial remedy proceedings can be initiated in England.

When considering the recognition of a foreign divorce, it is also important to consider the validity of the marriage in the first place. Under s.51 Family Law Act 1986, the recognition of a divorce may be refused if the validity of the marriage is in question.

How do I know if my divorce will be recognised?

Below we have set out the important factors to consider when trying to work out whether your divorce will be recognised.

1. Did your divorce take place in England?

A divorce or annulment that took place in any part of the British Isles, will be recognised in England if it was conducted through a court of ‘civil jurisdiction’. The Decree Absolute should be available as evidence of the divorce. A Decree Absolute can be obtained from the court in which the divorce took place. If the case number is known, the fee is £10. If it is not known, there is a fee of £45.

If you are unsure which court in England the divorce took place, a search can be made at the Central Family Court for a fee of £65. The appropriate form is the D440 which can be found at: https://www.gov.uk/government/publications/form-d440-request-for-search-for-divorce-decree-absolute

A religious divorce that took place in England (such as a Muslim Talaq, or Jewish Get) will not be recognised in England. This includes divorces obtained through the Sharia Council. In certain circumstances, a religious divorce that took place abroad will be recognised (see below).

2. Did your divorce take place within Europe?

Up until 31st October 2019 when the UK will formally exit the EU, where a foreign divorce was conducted in a European country (apart from Denmark), the divorce judgment will be recognised in another Member state. As such, divorces conducted within other European countries will be recognised in England without any intermediate proceedings, or grounds for refusal of recognition. The divorce certificate from one European country should not be appealed in another country, apart from to rectify a material error.

Following Brexit taking place (under a no-deal scenario), divorces that have taken place in Europe will be subject to the same tests of recognition as divorces that have taken place outside Europe (see below).

3. Did your divorce take place outside Europe?

If your divorce took place outside of Europe, then we need to consider whether the divorce was conducted through ‘proceedings’ or ‘other than through proceedings’. But what does that mean? Put simply, ‘proceedings’ means through an official, formal court process and ‘other than through proceedings’ means a more informal paper based or religious process.

Religious divorces, such a divorce by the pronouncement of the Talaq, may or may not involve proceedings depending on the process chosen and the country involved.

Through ‘proceedings’
An overseas divorce that is obtained through ‘proceedings’ will be recognised in England if:
a) It is valid under the law of the country in which it was obtained; and
b) At the time of the divorce, either party to the marriage was:
i. resident in the country in which the divorce took place;
ii. domiciled in the country in which the divorce took place; or
iii. a national of the country in which the divorce took place.

‘Other than through proceedings’
In contrast, an overseas divorce that is obtained ‘other than through proceedings’, is recognised if:
a) It is valid under the law of the country in which it was obtained; and
b) at the time of the divorce:
i. Both parties were domiciled in the country in which the divorce took place; or
ii. either party to the marriage was domiciled in the country in which the divorce took place and the other party was domiciled in a country that would recognise the divorce; and
iii. neither party to the divorce were habitually resident in England for a year prior to the divorce.

If you have had, or are considering getting divorced overseas and you would like more information about whether it will be recognised in England and Wales, then reach out to us on: hannah@expatriatelaw.com