Divorce for British Expats: The Effect of Brexit

couple sitting apart in distress

A court’s ability to deal with a divorce is called its “jurisdiction”. For British expatriates (also referred to as “expats”) in Singapore, a divorce can typically proceed either in the Singapore or English jurisdiction.

The jurisdiction in which a divorce takes place fixes the framework of law which applies to the division of the parties’ assets and future income.

The Effect of Brexit

The rules that detail when a divorce could proceed in England were once set out in European Union law. That is, until Brexit took place. The effect of Brexit is that European Union law ceased to apply in the United Kingdom from 1 January 2021. Therefore, jurisdiction rules have been altered.

Prior to Brexit, divorce jurisdiction was based on the residual sole English domicile of just one of the expat spouses, and restricted (subject to exceptions) the English court’s power to make maintenance orders.

After Brexit however, jurisdiction to divorce in England is now based on the sole English domicile of either party to a marriage. This automatically unlocks the powers of the English court to make maintenance orders (as well as deal with the division of worldwide assets).

Brexit has therefore expanded the reach of the English courts when dealing with divorces for English expats. The legal landscape has been altered and there are now different incentives and risks for both parties when deciding where any divorce should take place.

For completeness, it should be noted that English proceedings can be defended in the following circumstances:

  • If the respondent can prove that English domicile has not been retained (i.e. that a new domicile of choice has been acquired); or
  • Divorce proceedings are underway in Singapore and that Singapore is the more appropriate forum.

Defended jurisdiction proceedings are time-consuming and costly, so there should be an early assessment of the strength of the evidence on both sides. A careful costs/benefit analysis should also be conducted before action is taken.

When making early strategic decisions (i.e. as to whether the divorce should proceed in England or Singapore), early consideration should also be given to the location of the parties’ assets and enforcement of court orders across international borders.

What Does the Effect of Brexit Mean for a Divorcing Expatriate Couple? 

For a divorcing couple, where either party has retained their English domicile, the party making financial claims (of any nationality) is now incentivised to explore whether it is possible to initiate a divorce in England to benefit from a more generous maintenance regime.

However, the very fact that the claiming party could potentially pursue greater maintenance claims, simultaneously incentivises the other party to contest jurisdiction.

Where the divorcing couple are both English, there was once an incentive and opportunity for the respondent to argue they had relinquished their own domicile to try to restrict maintenance claims. However, that option to attempt to limit the court’s power no longer applies.

One must be aware that every case is different and a slight alteration of the factual matrix can change the strategic advice. It is important that the individual takes bespoke advice based on the specific facts of their case.