Issuing Divorce Proceedings – England & Wales or France?

Whilst the number of people entering into marriages has fallen over the years, divorce rates remain high, and indeed, recent statistics suggest that they are higher in France than in the UK. There are significant differences in divorce laws in France and in England & Wales. Therefore, in the unfortunate event that your marriage breaks down, it is very important to give careful consideration as to where your divorce should take place as the financial outcome may be very different for you, depending on where divorce proceedings are conducted.

For example, financial outcomes on divorce in England & Wales are reported to be ‘wife-friendly’ relative to some other countries. Whilst such a remark risks gender-stereotyping, it reflects the fact that English and Welsh courts tend to recognise that the party to the marriage who has provided a greater level of care to the children or home may have compromised their own financial position, and this may need to be factored in when separating the finances.

If you are living in France, you may still be able to issue proceedings for divorce in England & Wales if the following circumstances apply:

1. Your spouse is habitually resident in England & Wales;
2. Both of you are domiciled in England & Wales;
3. Either of you are domiciled in England & Wales.

It is important to note that the term domicile does not refer to any tax domicile here but rather a legal concept which relates either to your domicile of origin, i.e. your domicile at birth acquired from your parents, or domicile of choice, i.e. where you have chosen to make your permanent home.

Your domicile of origin continues unless another domicile is specifically chosen by you i.e. you have chosen to reside permanently or indefinitely in another country. Therefore, if you were born in England (and your parents’ domicile was in England) and, whilst you have been living in France, this is not intended to be permanent, and you intend to return to England in the fullness of time, your domicile of origin will prevail, and you will be able to issue proceedings for divorce in England & Wales.

By contrast, if your domicile of origin is England, you have moved to France and intend to remain there permanently, this will be your domicile of choice, and you will not be able to issue divorce proceedings in England & Wales (unless your spouse is habitually resident in England & Wales or is themselves domiciled there).

It is important not to confuse nationality with domicile. Just because you remain a British national does not mean that you have jurisdiction to issue divorce proceedings in the UK. You require either habitual residence or domicile as set out above. This is in contrast to proceedings being issued in EU countries, where the question of nationality generally applies.

You would need to seek early advice from both English and French lawyers to understand the consequences for you of issuing in each country. It may be that your spouse will be advised that it is preferable for them to issue in the alternative jurisdiction. Following Brexit, it is no longer the case that whoever issues first ‘wins’ the jurisdiction race, but it is a factor which could be taken into consideration and early advice is therefore very strongly recommended.