As a result of the European Regulation 2201/2003 it is possible to know exactly when and under what circumstances it is possible to divorce when a spouse lives in another country.
Many important aspects of a divorce decree can depend on the location of the spouses, for example, the location of the initial divorce application can determine which legal jurisdiction applies in international divorce cases. This in turn can affect greatly the divorce settlement that is reached: English divorce law can be quite different to Spanish law with regard to maintenance or alimony provision.
It is therefore important to address at the outset the issue of which country has jurisdiction to process a divorce application involving spouses of different nationalities or who are resident in different countries.
Which legal jurisdiction applies?
European Regulation 2201/2003 sets out the rules that determine which country has jurisdiction to hear and determine a divorce case which is any country where:
- the spouses are habitually resident, or
- the spouses were last habitually resident, and one still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her “domicile” there, or
- Both spouses are domiciled
So, these rules effectively set-out those situations in which it is possible to divorce when a spouse lives in another country and under which circumstances this can be permitted. Also noteworthy is the fact that a divorce petition may be considered to be filed correctly in more than one jurisdiction. Where a petition for divorce is petitioned in more than one country then the ‘first-past-the-post’ principle applies which has of course permitted the practice of “forum shopping” to flourish. Forum shopping is where a spouse will seek to file for divorce in the jurisdiction that offers them more advantageous laws than their partner.