Foreign Divorce and Domicile: How can I get an English financial order if I live abroad?
In order to engage and obtain financial provision in the English Courts under Part III of the Matrimonial and Family Proceedings Act 1984, you will require leave (or permission) from the Court to bring the application. If you are not habitually resident in England, the first step to obtaining jurisdiction is to show you are domiciled in England and Wales and that you have sufficient ‘connection’ to this country. It is wise to consider if you have taken any steps to make your move abroad permanent or irrevocable at this stage, in order to examine any weaknesses in your case before embarking on this application.
Domicile Checklist
The following provides a non-exhaustive checklist of matters you may wish to consider as part of your presentation to the Court as to your standing to bring an application. This will usually be done by way of a witness statement. You should also collate all corresponding evidence/documents so that they can be produced to the Court when necessary.
- Domicile of origin – upon birth you acquire the domicile of your father, or mother if they were not married when you were born. This can cause issues with same-sex parents if their domicile differs as the law has not caught up. You can only have domicile in one country and no person can be without one. You can acquire a ‘domicile of choice’ abroad if you live there and you intend to stay there permanently. This is likely to be the argument your spouse will raise if they object to your application being brought in England. It is common for expats who move away for work to retain their domicile of origin.
- Citizenship – Have you applied for citizenship where you live abroad? If not, then this will be beneficial. If you are thinking of applying it may be wise to put this on hold pending any Part III application in the English Court.
- Passport –Have you applied for a passport where you live or taken steps to change your nationality? The retention of a British Passport will assist here. Of course, many people have more than one passport.
- Residence Permits and Visas – what is your residential status where you live abroad? Is it temporary or permanent? The more precarious this is, the better in many ways.
- Marriage – did you get married or co-habit in England? This should be mentioned as part of your account of your history, as well as where you grew up and where you were educated.
- Motive – why did you move abroad? If this was done as a result of ‘force’, not out of choice or was precarious in some way, highlight this.
- Property – Where do you own property or have an interest in property? It will be an advantage to own property in England, especially if it is a family home.
- Bank Accounts, investments and credit cards – Do you have an English bank account or any investments that are active? Do you use an English credit card? These accounts and transactions should be highlighted to the Court.
- Insurance – do you have any British insurance policies? If so, you can include these.
- Pensions – there are many English pensions that can only be shared via an English Court Order. If you or your spouse are paying into these, it may be that you can obtain a pension sharing order via this application if you were not provided with pension provision abroad. However, do ensure that there was no other asset allocated to you to offset the Court’s lack of power to make a pension share in the foreign jurisdiction.
- Inheritance – Will you inherit assets in England and are you a beneficiary under any Wills? You may be heavily taxed if you live abroad upon your inheritance and therefore it may be advantageous to return to England as part of inheritance tax planning. This intention should be highlighted.
- Income – where do you earn your income and pay tax? Do highlight if you can move your work easily to the UK via remote working.
- Voting – do you remain on the electoral role in England to vote and do you exercise this right? This is useful to draw to the attention of the Court.
- Healthcare – can you still access the NHS and do you receive any healthcare in England? This may be relevant.
- Children – Where were your children born? Where do they go to school? Do they attend private or boarding school in England? Where do they intend to go to University if are at school abroad? You should spend some time addressing this aspect to the Court.
- Language – what language do you and your family speak? If your children have been born in a foreign country, it will be useful to highlight that your children speak English (if that is the case).
- Extended Family and New Partners – do your parents or extended family live in England? Are you in a relationship with a British person who lives in England? If so, include as many details as you can.
- Travel and Holidays – how much time do you spend in England and do you visit regularly. You should include these details.
- Season Ticket – do you often travel back to your country for a sport such as football? This type of evidence has been used!
- Retirement – where do you intend to retire? If this is in England, say so, especially if you will qualify for state pension.
- Death – Where will you die and where was your will written? A morbid but key question in the Court’s assessment of domicile.
If you are unsure about your entitlement to bring a Part III application in England and require advice, please contact the AG family team at 020 7940 4060.
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