Advice Centre

International Divorce case study: when the respondent lives abroad and does not engage in the proceedings in the UK

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Posted in: Divorce, Family and children
Date published: 01/04/2020
Divorcing An Abusive Spouse

Our International Divorce Lawyers and Solicitors in the UK have a lot of experience in dealing with:

  • Obtaining a divorce when your spouse lives in another country
  • Divorces involving a foreign national
  • Divorces when there has been a foreign marriage

Am I eligible to apply for a divorce in England and Wales?

You can apply for a divorce in England and Wales if:

  1. You and your husband/wife are habitually resident in England and Wales or;
  2. You and your husband/wife were last habitually resident here and one of you still resides here; or
  3. Your husband/wife is habitually resident here; or
  4. You are habitually resident in England and Wales and have resided here for at least year immediately prior to the petition.
  5. You are domiciled and habitually resident in England and Wales and have resided her for at least six months immediately prior to the petition.
  6. You and your husband/wife are both domiciled in England and Wales

What if my husband/wife lives outside of England and Wales?

As we act for international families, we often have cases where the other spouse is abroad but the petition is domiciled in England and Wales. The international divorce process might appear daunting and it can sometimes be complex and length but there are legal procedures in place to enable service of the divorce petition outside of the UK.

Real case study

We were instructed  by a wife who issued divorce proceedings in England and Wales based on the fact of “5 years separation”.  In England and Wales you must give one of the following reasons for your divorce in your divorce petition:

  • Adultery- the respondent has committed adultery and the Petitioner finds it intolerable to live with the respondent.
  • Behavior- the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.
  • Desertion- the Respondent has deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.
  • Separated for 2 years and consent- the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents.
  • Separated for 5 years- the parties to the marriage have lived apart for a continuous period of at least give years immediately preceding the petition.

The parties had married in Poland in 1989.  By the time they came to divorce had been married for 26 years and had been living apart for five years.  The spouse had also formed a new relationship, was cohabiting and wanted to move on with her life.

Whilst the spouse was habitually resident in England and was eligible to issue divorce proceedings in the UK, her husband was living in another country, Poland and this raised issues such as service of the divorce petition abroad.

As the respondent did not return his acknowledgment of service form back to to the court, we arranged for an international agent to deliver a copy of the divorce petition to his home address in Poland. However this option was not without its own issues and the respondent did not answer the door to the international agent. The agent was told that the respondent was out at work and that a relative would inform the respondent that service had been attempted.  

Following this attempt we sent a letter to the respondent at the address in Poland, by recorded delivery, and it was returned to our office.

Given the above difficulties an application was made to the court to dispense with service of the petition in that all possible options of serving the respondent had been exhausted.  However before the court could grant the application it wanted confirmation as to whether the client had tried the following:

  • Contacted the respondent on his mobile or email address;
  • Carried out searched on social media websites including Facebook to see whether service by Facebook Messenger could be a viable option.

We confirmed to the court that the client did not have a mobile number or email address of the respondent. We also confirmed that search of Linked In and Facebook were undertaken and the respondent appeared to be on the social media platform.

Following an approved application for the petition to be served on Facebook the court confirmed that once completed the petition would deem to have been served 48 hours after service.

The above order  of the court enabled the client to go on to apply for the middle stage of the divorce proceedings, Decree Nisi. The client finally obtained a Decree Absolute in May 2019.

We estimate that without any complications divorce proceedings in England and Wales should take between three to four months without any delays on the court’s part. However, when a respondent lives abroad or evades service or has subsequently moved address, the process can take a lot longer. However what the above case study proves is that at IMD we explore all options to overcome these complex international divorce cases and even though the international divorce process takes longer than planned, we have success in obtaining the required outcome; in this case a divorce when  a spouse lives in another country.

For further information, please contact Iwona Durlak in the family law team on 0330 107 0107 or email i.durlak@imd.co.uk. This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published

Published by:

Iwona Durlak Senior Partner

Family Law – IMD Solicitors LLP


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Example of cases we have dealt with:

F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain. She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco. The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco. Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.  
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million. 
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.

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