DIVORCE FOR EXPATS - How does it work?

Posted in Legal on 08 Jul 2016

By John Hatrick, Tenerife Solicitors

According to UK government statistics, 35% of all marriages are predicted to end in divorce. Although no accurate statistics are available amongst UK expats, it is believed that the number may be even higher. Whilst many couples believe that living abroad will improve their lives, a number of factors, such as financial considerations, missing friends and family, the language barrier or just plain homesickness can put a strain on even the most committed relationships.

An increasingly common scenario among Brits in Tenerife is for one partner to move back to the U.K. whilst the other party remains in Spain. Assuming the marriage cannot then be salvaged, one partner will then typically seek to get the legal ball rolling. But where both partners are now living in different countries, which country should proceedings be commenced in?

Strictly speaking, to petition for legal separation or divorce in either England or Spain, the only requirement is for one partner to be 'habitually resident' in the country where proceedings are commenced. Hence, the partner living in Spain could commence proceedings in the U.K, or indeed vice versa. The definition of 'habitual residence' typically requires one party to have been living back in the U.K. for 6 months prior to commencement of proceedings. However, proceedings are sometimes allowed sooner where one party has more recently relocated back to the U.K, depending on the circumstances. However, Domicile by itself is NOT sufficient to prove habitual residence.

Many Brits prefer to commence proceedings in their country of origin, perhaps due to there being no language barrier, or perhaps due to the perception that legal proceedings in the U.K. are faster, less bureaucratic and come with less uncertainty than typical legal proceedings in Spain. However, there are also other factors affecting which country is more beneficial depending on personal circumstances.

One important point to consider is that whilst there may be a choice of issuing proceedings in either Spain or the U.K., once proceedings are issued in one country by one spouse, both spouses are then tied to the jurisdiction of that country and cannot change to the other country later. Hence, in order to secure one's first choice of jurisdiction, there is sometimes a dash to issue proceedings in one country before the other spouse can issue in the other country. This is commonly referred to as 'forum shopping'.

Whilst it is possible to instruct a U.K. based solicitor remotely, most expats appreciate being able to instruct a local Tenerife based solicitor with a U.K. office who can handle the whole process from Tenerife, typically at rates substantially lower than those charged by the average U.K. solicitor.

As English Solicitors with an office in Tenerife, we can seamlessly handle the financial aspects of a divorce where the spouses have assets (e.g. property) located in Tenerife. Many U.K. solicitors would not wish to directly handle a financial settlement or enforcement against Tenerife-based assets, as they are not familiar with Spanish laws or procedures. Instead they typically choose to subcontract this to a firm based in Tenerife. Indeed, we often receive instructions from U.K. firms for such work where the end clients did not realise they could have cut out the middle man and instructed us to handle the whole process directly.

For more information or to arrange a fixed fee consultation, please contact Tenerife Solicitors on 922 717845 (or 0871 218 0063 from the U.K.) or by email to [email protected]