UK expats and foreign nationals (UK resident) can use the legal systems in the UK to organise their separation and divorce.

When separation occurs there are a number of matters to consider - financial settlement, divorce and, where applicable, arrangements for the children.

• To reach a financial settlement with your spouse start by listing all assets and liabilities. It is important to distinguish assets acquired pre marriage or held as separate funds from personal wealth. The aim is to negotiate a settlement and formalise this in a legally prepared Separation Agreement. It is important that each spouse should seek legal advice before signing such an agreement to avoid any claims of unfair influence later on.
• The grounds of divorce are just the same as for UK residents. It is important to be able to establish jurisdiction to raise an action for divorce in the UK.
• Arrangements for children should be incorporated in a Separation Agreement. This should cover who the children will reside with and when the other parent will have contact. The level of financial support should also be stated. Note that the Child Support Agency cannot be used where one of the parents resides abroad.

What does jurisdiction mean?

Jurisdiction means that you have a suitable link with the UK to allow proceedings to be raised. This section is relevant for foreign nationals living in the UK just as much as for UK expats.

Firstly, take the situation of expats living outwith the European community. In that situation to establish jurisdiction for a divorce in any of the UK courts one of the parties must be either (a) domiciled in England, Scotland, Northern Ireland or Wales from the date when the proceedings are started or (b) was habitually resident in the UK throughout one year ending with that date.

Domicile is different from residency e.g. if you are English, Scottish, Welsh or Irish, but working abroad you can still be domiciled in the UK.

Secondly, take the situation of parties resident in any of the European community countries. Every country which meets one of the following criterion has jurisdiction for a divorce action:

(a)        Both spouses habitually resident in the EC country.
(b)        Both spouses were last habitually resident in the EC country and one of them still resides there.
(c)        The respondent/defender (the other spouse) is habitually resident in the EC country.
(d)       The applicant is habitually resident in the country and has been resident there for at least one year immediately before the application.
(e)        The applicant is habitually resident in the territory and has resided there for at least 6 months before the application and is a national of a member state. This category brings out an anomaly e.g. a UK national living with her husband in Germany moves back to the UK. She cannot raise a divorce action until 6 months residency has passed (but the spouse in Germany may be able to get an action in first).

These tests will also apply to any foreign national who is resident within the European community. Thus, an American citizen who is married and living in London can divorce in the UK if one of the criterion is met. 

As a final comment please note that it is not essential to divorce in the country where you were married. Indeed, the courts in that country may not accept a divorce action on the basis that you were married there. eg if a New Zealander marries a French girl at Gretna Green, then they live in England, a divorce action could not be brought in Scotland.