We are often consulted by clients who have decided that their marriage has broken down and that they are left with no choice but to begin divorce proceedings.

If you are in this unfortunate position, even though you may have lived in Spain for many years, you may still be able to issue Divorce Proceedings in England and Wales rather than Spain but there are some technical factors which you must consider.

The crucial factor is where you are “domiciled”.   Domicile is a separate concept from Residence or Nationality, and in essence it is the place with which you have the deepest roots and ‘legal connection’. 

In law everyone has a domicile, but only one at any given time.  A person can only have a domicile within a territory subject to a single system of law. As the United Kingdom has three distinct legal systems, in England and Wales, Scotland, and in Northern Ireland, you can be domiciled in one of the constituent parts of the UK, but not actually in the UK as a whole.

Everyone has a “Domicile of Origin” which is normally the country of their birth.

This may change through circumstances when a person may acquire a “Domicile of Choice”.  The usual means of acquiring a new “Domicile of Choice” are, 

• Taking out foreign citizenship or naturalization, or
• Marriage to a foreigner and cutting all links to your family in your country of birth, or
• Fleeing from your home country and becoming a refugee, or 
• Severing all connections with your home country and having the intention to remain in your new chosen country for the rest of your days, or
• At the end of your days, intending to be buried in your new chosen country

To be able to use the English Courts for your divorce you will have to show that you are still domiciled in England and Wales.  This does not necessarily mean that you need to have an address in England or Wales.

If you have family or other connections with England and Wales, including bank accounts, property, or even membership of clubs, societies, or a church or synagogue, or intend to return there at some distant time in the future then in most circumstances anyone originally from England or Wales can use the courts there, on the basis that they are ‘domiciled’ in England and Wales.  

If you want to use the courts of England & Wales for your divorce the test to be applied by divorce judges is whether your connection with England & Wales is sufficiently close to make it desirable that the courts there should have jurisdiction to dissolve the marriage.

 As long as an English (or Welsh) divorce court judge is satisfied that England & Wales is ultimately your ‘home country’ and you have not permanently abandoned it then the court can deal with your divorce, even if you have lived in Spain for many years.

Scotland and Northern Ireland have different legal systems and if you intend to divorce in either of those places then you need to take advice from lawyers qualified there.

If the judge dealing with your divorce proceedings suspects that you have permanently abandoned England & Wales he will ask you to file “evidence of domicile” in the form of a sworn statement setting out just what your connections with England & Wales actually are.

Even though your divorce proceedings are conducted in England & Wales under the Brussels Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters, (known as “Brussels II”) the English court can make orders to deal with your property and other issues arising out of the divorce which will be recognised and enforceable in Spain   

Divorce is always complex and can be traumatic so please take qualified advice if you feel that your marriage has broken down.