When seeking to divorce a spouse, there is no requirement that the other person must be living in the UK. The requirement is simply that both parties have a sufficient connection to England and Wales for the court to have jurisdiction to hear the case.
This connection can be based on the spouse’s residence, but it can also be based on the Applicant’s residence. For example, the Applicant being habitually resident in England and Wales and residing there for at least one year immediately prior to the application, is itself sufficient for that party to apply for a divorce in England and Wales, regardless of where the Respondent is living. If the Applicant has only lived in England and Wales for a short time, or if they have divided their time between more than one country, then advice should be sought from a family solicitor on the issue of jurisdiction, as it can be a complicated area.
If the court has jurisdiction to hear the case, the Applicant can apply for a divorce in the usual way even if their spouse lives overseas. If the Respondent has an address for service in the UK, the court can serve the divorce application in the normal way. Otherwise, the Applicant can opt to effect service themselves and arrange for the application to be sent to the Respondent. Provided that the Respondent co-operates by acknowledging receipt of the divorce application to the court and allowing the divorce to proceed, the fact that the Respondent is living overseas should not cause any complications with the divorce process.
The matter will become more complicated, however, if the Respondent does not co-operate with the divorce. Although service of the divorce application can take place out of the jurisdiction of England and Wales without needing permission of the court, there are specific provisions that relate to this. Furthermore, if the Respondent does not respond to the divorce application, then the onus is on the Applicant to satisfy the court that the Respondent has had notice of the divorce proceedings. This can be more complicated where the Respondent is overseas, not least because, if necessary, arranging personal service of the documents on the Respondent by a process server may be more difficult.
Once the Respondent has been served with notice of the divorce application to the satisfaction of the court, whether by personal service or otherwise, the divorce can then proceed as it normally would with the Applicant applying for the Decree Nisi. There should then be no further complications caused by the fact that the Respondent is living overseas. If there are financial matters that also need to be resolved then this can be complicated by the Respondent living overseas, although the degree that this complicates matters is often largely determined by where the parties’ assets are based.
In summary, while the fact that a spouse may now live overseas can complicate matters, it need not necessarily cause significant difficulties. The way a spouse responds to a divorce application can often be influenced by how it is drafted and how they are notified. Therefore, if the spouse to a divorce is living overseas it would be advisable to seek an early consultation with a family solicitor to discuss the position as regards to the divorce and any financial/children matters, and to decide on the best way forward.
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