Can I issue my divorce in England and Wales?

Questions answered in this guidance

What the law says about jurisdiction to deal with divorce

I live in the UK but I am not British. Can I get divorced in England or Wales?

What is habitual residence?

The importance of the habitual residence test

I was born in the UK but I live abroad. Is there jurisdiction to deal with my divorce in England or Wales?

I live in Scotland but my spouse lives in Wales. Can we get divorced in England or Wales?

Overview of jurisdiction rules for divorce in England and Wales

England and Wales have a separate legal system to other parts of the United Kingdom.

This guidance only applies to getting a divorce in England and Wales.

If you were born in England or Wales and still live there, you are entitled to apply for a divorce in England and Wales.

If you were not born in England or Wales or no longer live there, you need to check the rules before you apply for a divorce to make sure that you are eligible.

The rules are complex. This guidance will help you understand the basics of jurisdiction. If you aren’t sure whether you are eligible after reading it, please consult a solicitor.

This guide is completely free. However, to help protect the copyright of the author, you will need to create a free account in order to read it.

This guidance relates to applying for a divorce after 31 December 2020.

If you are looking for information on jurisdiction in divorce proceedings that are already issued please consult a solicitor.

For new divorce applications after 31st December 2020, the relevant law is  section 5 of the Domicile and Matrimonial Proceedings Act 1973. (link opens in a new window)

If, on the date of the application:

• The spouses are habitually resident in England and Wales.
• The spouses were both last habitually resident in England and Wales and one of them continues to reside there.
• The respondent is habitually resident in England and Wales.
• The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.
• In a joint application only, either of the parties to the marriage is habitually resident in England and Wales
• The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
• Both spouses are domiciled in England and Wales.
• Either spouse is domiciled in England and Wales.

you are eligible to apply for a divorce.

The answer is not straightforward.

You or your spouse must also be habitually resident in England and/or Wales (or most recently habitually resident there if you are in the process of moving)

The test of whether you are habitually resident in England or Wales is not just where you are living. A person can have a home in more than one country. Therefore, at different times of the year, they may live/reside in more than one country.

Habitually resident means more than where you are choosing to spend time. It is about where your life is centred.

The first factor to consider is whether either or both you and your spouse are habitually resident in England or Wales.

Answer – both

You can apply for a divorce.

Answer – both of you were, but you are in the process of moving the centre of your life to another country

If your spouse continues to live in England or Wales, you can apply.

Answer – only your spouse is habitually resident in England and Wales

If it is a sole application made by you, you can apply.

If it is a joint application, you can apply together if either of you are habitually resident.

Answer – only you are habitually resident in England and Wales

If it is a sole application made by you, you can apply if you have lived in England or Wales for at least a year (and still live there).

If it is a joint application, you can apply together if either of you are habitually resident.

Answer – neither of you are habitually resident

It may still be possible to apply for a divorce if you are domiciled in England and Wales. See below.

If you cannot satisfy the test for habitual residence but you were born in England and/or Wales, you need to check your domicile.

Everyone has one domicile at any one time. For most people that is likely to be the  country where they were born. This is called their domicile of origin.

Some people make another country their permanent home. This becomes their domicile of choice and displaces (but does not extinguish) their domicile of origin.

The factors considered in the test for domicile may be very similar to those in the test for habitual residence. But in the case of domicile, it is the intention to make somewhere your permanent home that is key.

If neither you nor your spouse satisfy the habitual residence test, you should take specialist advice on whether your domicile or your spouse’s domicile entitles you to apply.

Scotland, Northern Ireland, England and Wales are separate countries for the purposes of the domicile test.

Please be aware that some countries do not recognise divorce orders or financial orders arising out of a divorce where jurisdiction was solely based on the domicile of one spouse only.

 

The same rules apply for people living in other parts of the UK. Scotland and Northern Ireland have different legal systems to England and Wales.

You or your spouse will still need to pass either the habitual residence test or the domicile test to apply for a divorce in England or Wales.

Court fees

Court fees are payable when you start a divorce.

There is a separate fee if you have to make another application as part of your divorce.

For example, if you need to apply for deemed service, you will pay an extra fee on top of the original court fee.

A fee is also payable for an order dividing your assets or making a clean break.

Help paying the court fee

If you are on a low income

• you may be eligible to pay a discounted court fee; or
• fully exempt.

Court Fee refunds

If you have paid a court fee within the last 3 months and were eligible at the time for exemption or to pay a discounted fee, you may be able to apply for a refund.

How much is the court fee?

The table below shows the most common court fees in connection with divorce.

You can find out more about fee exemption and apply for help with the court fee here.