A court’s ability to deal with a divorce is called its “jurisdiction”. For British expatriates in Singapore, a divorce can typically proceed either in the Singapore or English jurisdiction.
Choosing the appropriate jurisdiction for divorce is important. This is because the family courts in each country have developed different rules which guide their exercise of dividing assets and income during a divorce. This can affect the financial outcome of a divorce as a result.
This article will discuss:
- When can a British expatriate divorce in Singapore?
- When can a British expatriate divorce in England/Wales?
- Should British expatriates file for divorce in England based on joint or sole domicile in England?
- Contesting jurisdiction if either spouse does not agree to divorcing in England/Wales
Contrary to popular belief, it is not necessary to divorce in the country in which you were married.
In order for British expatriates to commence divorce proceedings in Singapore:
- One of the parties must have been habitually resident in Singapore for 3 consecutive years, prior to initiating the divorce, or be domiciled (permanent place of residence) in Singapore; and
- Parties must have been married for at least 3 years.
However, in cases where one spouse has suffered exceptional hardship a divorce may be granted within the 3 years.
A British expatriate choosing to divorce through the Singapore courts must also be aware of the potential subsequent financial claims that could be made through the English courts by their spouse for a financial settlement after a foreign divorce, under Part III Matrimonial & Family Proceedings Act 1984.
When Can a British Expatriate Divorce in England/Wales?
If the above-mentioned conditions are not satisfied or if either party wishes to initiate a divorce prior to the 3-year period, British expatriates may look to filing for divorce in their home jurisdiction instead.
British expatriates (and the spouses of British expatriates of a different nationality) are usually able to initiate a divorce in the English courts, as long as they have been married for more than 1 year.
A divorce can proceed in England even if one or both the parties, have lived abroad for many years.
However, whether the parties can divorce in England/Wales also depends if the English courts have jurisdiction to hear your divorce proceedings.
When does the English court have jurisdiction?
The English courts have jurisdiction to deal with the divorce only where:
- Both parties are habitually resident in England and Wales; or
- Either parties were habitually resident in England and Wales, and one of them still resides there; or
- The respondent (the person whom the divorce is filed against) is habitually resident in England and Wales; or
- The petitioner (the person who filed the divorce) is habitually resident in England and Wales and has lived there for at least 1 year immediately before the petition is filed; or
- The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least 6 months immediately before the petition is filed; or
- Both parties are domiciled in England and Wales; or
- If none of (1)–(6) above applies and no court of another EU State has jurisdiction, either party is domiciled in England and Wales on the date when the proceedings are begun.
To establish jurisdiction, points (1) to (5) require physical presence in England/Wales of one or both parties.
Points (6) and (7) do not require the physical presence in England/Wales of either of the parties. The practical implication is that the divorce can be conducted entirely remotely by English lawyers who are experienced working with expats.
What is domicile and how to determine the place of domicile in English law?
Everyone has a domicile at all times and it is only possible to have one domicile at any one time.
In the context of English divorce jurisdiction, it is essential to understand 2 forms of domicile:
- Domicile of origin; and
- Domicile of choice.
Domicile of origin
The domicile of origin is the domicile that a person acquires at birth and is the country in which their parent is domiciled at the date of birth.
Where the married parents of a child are both alive and living together, the child’s domicile will be that of the father. A child born to unmarried parents or to a mother following the death of the father will have the domicile of the mother.
Domicile of origin is difficult to relinquish. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. The burden of proof is on the individual to demonstrate that he has lost his domicile of origin.
Domicile of choice
A domicile of choice can be acquired by the combination and coincidence of residence in a country and an intention to make one’s home in that country permanently or indefinitely.
In simple terms, the individual must be physically present in the country and be able to demonstrate their intention to live there forever.
Physical residence for a short period of time, even a few days, may be sufficient to establish a domicile of choice, as long as the intention to reside in that country is for the indefinite future.
A person may abandon a domicile of choice in a country by ceasing to reside there and by ceasing the intend to reside there indefinitely.
Should British Expatriates File for Divorce in England Based on Joint or Sole Domicile in England?
When English jurisdiction is pleaded based on both parties being domiciled in England (as per point 6), the English court will deal with the division of assets and maintenance.
Where divorce jurisdiction is based on the sole domicile of one spouse (as per point 7), the starting point is that the English court does not have jurisdiction to make maintenance orders. Instead it only has jurisdiction to divide assets.
However, the English court may still make maintenance orders if:
- The parties voluntarily submit to the jurisdiction in respect of maintenance;
- The respondent enters an appearance (other than to contest jurisdiction – see below); or
- Proceedings cannot reasonably be brought or conducted or would be impossible in a third state.
Contesting Jurisdiction If Either Spouse Does Not Agree to Divorcing in England/Wales
There may be grounds to contest the jurisdiction of the English court to hear the divorce if, for example, Party A issues proceedings in England and Party B does not agree that the English courts have jurisdiction (and is keen to protect his or her assets from the powers of the English court).
An individual who wishes to avoid subjecting their financial position to the scrutiny and the wide-ranging discretionary powers of the English court, might consider whether to:
- Contest jurisdiction completely so that the English court cannot deal with financial matters; or
- Contest a joint domicile petition to force the other party into proceedings based on sole domicile (therefore limiting any potential financial settlement to division of assets only, as mentioned above).
Consider the following typical scenario:
A British couple move to Singapore. The wife issues a divorce petition in England based on the parties’ joint domicile of origin.
The husband might argue that the move to Singapore was a permanent move and therefore that:
- They both relinquished their domiciles of origin and acquired domicile of choice in Singapore. Hence, the English courts do not have jurisdiction; or
- He has relinquished his domicile of origin and acquired domicile of choice in Singapore. Therefore the wife’s petition can only proceed based on her sole domicile which means that she cannot ask the English court to make maintenance orders.
Therefore the core question at the heart of every contested jurisdiction case will always be whether either (or both) the parties ever effectively relinquished their domicile of origin and established a domicile of choice in Singapore.
Before embarking on jurisdiction litigation, it is important to carefully understand the relevant law and to make an early assessment of whether the available evidence supports the proposed argument.
Lawyer advice should be sought at the earliest opportunity to understand the relevant law, divorce procedures and likely outcomes so that an informed decision can be made with regard to the choice of jurisdiction.