1. Divorced in the United Kingdom
Introduction
It is the right of the courts of a State to decide the (marital) status, or the domestic
and social condition of any person domiciled in that State1
, and if the status of the
person changes it is on the Courts of the same State to look into the causes of such
change by observing the evidence related to the acts and omissions of the parties in
order to pronounce (separation in the case of marriage) or to prescribe the court
which has a jurisdiction to give decree and whatever legal proceedings are
necessary for it.2
But the general public would chose a forum through which they
could receive a maximum amount of relief. The uniqueness is how a more than forty-
years old Matrimonial Causes Act 1973 is still being preferred by people all over the
world. Perhaps it is due to two reasons and to discover those is the purpose of this
essay.
The first reason the author supports is its allowing entry of cases based on a broad
domicile system and second is due to the Matrimonial Laws’ conferring of a huge no.
of discretionary powers to the courts. It shall also be explored how the International
Laws and treaties support the parties’ endeavours of seeking divorce in an overseas
land.
How the United Kingdom adopted the International Laws of Divorce?
London has often referred to in the news as ‘the divorce capital of the world’3
According to 2012 statistics4 every 6th divorce case filed in UK is an International
case, and the reason is mainly the distribution of the property of spouses in a
manner that is quite generous to the less-well-of partner.5
In UK it is accepted through theory6 and practice that if the ceremony took place
outside the jurisdiction of UK, the UK will recognise it only if the State where the
ceremony was held deems it legally valid.7 The matter is of a crucial nature due to
1 Strader v. Graham 10 How [U.S.]
2 Hunt v. Hunt 72 N.Y. 217, 228 (N.Y. 1878)
3 Emine Samer, ‘Keen to leave your rich husband? Came to London the divorcecapital of the world’, The
Guardian 24th Feb, 2015 <www.guardian.com/lifeandstyle/shortcuts/2015/feb/24/divorce-rich-husband-
london-english-law>
4 Francis Gibb,‘Divorcetourists takeover the court’ 10th April,2012 The Times Law
<www.thetimes.co.uk/tlo/law/article3379227.ece>
5 ibid
6 <www.gov.uk/government/uploads/system/uploads/attachments-data/file/268020/marriage.pdf>accessed
1-5-16
7 R. v M. [2011] EWHC 2132 (Fam.); the recognition of marriages in the pastwas wide enough to include
marriages atsea however it’s not currently recognised due to the legal requirement of an identifiablepremises
to solemnisethe marriage.

2. the fact that a legal ‘divorce’ cannot be obtained under the UK law unless the
marriage itself is recognised8 to be a valid one.9
UK is a signatory to the Private International Law Convention for the recognition of
divorces which is known as ‘Convention of the Recognition of Divorces and Legal
Separations.10 It is open to all countries currently there are twenty parties to the
convention of which 3 are non-European i.e. Australia, Egypt and Hong Kong.11
Broadly, it deals with decrees of divorce and legal separation announced by the
courts of member countries.12 The original text was formed after debates between
representatives of 25 countries13 the purpose of it as appears in the preamble is,
“To facilitate the recognition of divorces and legal separations”14
Which means not to favour the increasing no. of divorces but to simply recognise
those and hence to aid the legal procedures involved in foreign divorces while at the
same time reducing the negative social consequences that are a part of getting a
divorce15 According to Bellet and Goldman this convention was made to help
achieve the Private International Law’s objective of recognising the rights of citizens
of foreign countries and to uphold the private interests of parties (which are the
stability and security of family life in this case) even if it is achieved at the cost of
their freedom of action.16 How far this aim has been achieved among the member
countries is beyond the scope of this essay so, after slightly touching the topic, the
author shall move on to the impact of the convention on the law of UK.
It is understood that a divorce is considered ‘foreign’ by a country if it took place in a
foreign territory or if one of the parties to it is a national of a foreign State. [Article 2]
But the less understood or agreed things are the legal grounds of divorce that vary
from country to country and are encoded in the substantive law of each nation. Then
there are different types of laws governing the subject of divorce e.g. religious laws
that are private to parties, civil laws, common laws and customs. With an increasing
globalisation it is not difficult to imagine that people coming from separate parts of
the world and belonging to completely different cultures shall be marrying each other
and hence a need for international treaties and laws has increased as, the civil laws
of member countries can sometimes be rigid like Maltese law had a complete
8 Ibid 3
9 KC & NNC v City of Westminster social and community services department IC 2008 EWCA Civ.198; a case
where marriageof a person (British National) incapableof entering in a marriagecontractwas annulled though
it was acceptablein his home (Paternal) country.
10 It was formed on 1st June, 1970 and it came into force on 24th Aug, 1975
<http://www.hcch.net/en/instruments/conventions/status-table/?cid=80>
11 ibid
12 Messers P. Bellet and B. Goldman, ‘Convention on the recognition of divorces and legal seperations,p.2
Permanent Bureau of the conference 2c,Javastraat,The Hague, Jan 1971
<assets.hcch.net/upload/exp/18e.pdf> accessed 14th May,16
13 Ibid p.2
14 Ibid p.1
15 Ibid 2
16 Ibid 2

3. restriction on divorces17 until the 2011 referendum, and they could also be too lenient
like the Finnish Law that only has the requirement of 6 months contemplation or 2
years separation while there is no need to show any grounds / faults of the other
party.18 They could also be vague like only one ground is needed in Australian law
i.e. irreparable breakdown of the marriage, which has to be proven by the party
alleging it, which being vague itself opens up the gates for case laws and judicial
precedence.19 Those could also be based on religious personal laws that are
codified in certain countries like the Muslim Personal Law is codified in Egypt which
means there could be a complete abandonment and even criminal penalties on
same sex partnerships,20 while a complete acceptance of polygamous marriages of
men up to four wives.21 There could also be a long list of grounds of divorce like fault
divorce in USA which varies in terms of grounds in each State but overall includes
adultery,22 Cruelty, abandonment or desertion, mental illness, criminal conviction,
substance abuse/impotency, lack of financial support.
How jurisdiction falls in the United Kingdom?
It is believed23 that while making a comparison between different jurisdictions for the
purpose of international family law cases, the focus should be kept on procedural
aspects and not just the rules and practices. E.g. stating how the parties will be dealt
with in a divorce case is not sufficient, it is also needed to be shown how the
jurisdiction falls there.24
Legally, no person can be without a domicile but with regard to jurisdiction of divorce,
parties have to prove that they were holding a UK domicile (either the domicile of
choice or the domicile of origin)25 at the time of filing the divorce. The test for
domicile was established in Udny v Udny26 according to which the party pleading
divorce has to show that he/ she was residing in UK with an intention to reside
permanently there. The one word concept given for establishment of domicile is
17 Leo Mirani,‘Malta to legalisedivorceafter bitter referendum’ The Independent 30th May, 2011
<www.independent.co.uk/news/world/europe/malta-to-legalise-divorce-after-bitter-referendum-
2290802.html> accessed 7th May 2016
18 MarriageAct of 13th June 1929
19 The lawoffice of Jeremy Moorley, ‘Conditions for obtainingdivorcein Neitherlands’<www.international-
divorce.com/d-netherlands.html> 10th May 2016
20 In a time of torture : The assaulton justiceIn Egypt’s crackdown on Homosexual conduct: APPENDIX : Laws
affecting malehomosexual conduct in Egypt, Human Rights watch
<http://www.hrw.org/reports/2004/egypt0304/9.htm> accessed 9th May, 2016
21 Philip Smucker special to the Christian sciencemonitor,‘Polygamy goes on trial in Egypt’ July 16, 2001
<http://www.csmonitor.com/2001/0716/p6s3.html> accessed 9th May 2016
22 Choudhri Nihara K,‘The complete guide to divorcelaw’New York (2004): Citadel press p. 8
23 Jeremy D. Morley, ‘Comparingdivorcejurisdictionsin International family law,Proceduremay trump
substance’,June 2008 <http://www.international-divorce.com/Comparing-divorce-jurisdictions-in-
international-family-law>accessed 10-5-2016
24 ibid
25 CHAPTER 8 – DomicileBooth & Schwarz: Residence, Domicileand UK Taxation,15th Edition
<http://uk.practicallaw.com/books/9781847667670>
26 (1869) LR 1 SC & D 441 p. 458

4. ‘settlement’ that the party has settled in the country27 and such residence/ settlement
should be with one’s free will and not one imposed by an external need such as, ‘the
duties of office, the demands of creditors, the relief from illness etc.’28
In Mark v. Mark,29 the court was faced with the question of whether it could decide
the divorce petition of a wife who had overstayed her visa and was residing illegally
in UK. The courts solved this by dividing the status of a citizen in two parts; political
status which establishes the natural/ inborn allegiance of the person to his/ her birth
place and civil status through which the person derives his/ her municipal rights.
Now, the political status varies because the public laws of each country are different
but the civil status remains the same as it is determined only through domicile of the
parties and issues such as marriage, succession, testacy, intestacy, majority are
established by domicile.30
Under the EU regulation of 2003 divorce cases are heard in the first valid jurisdiction
in which they are filed31 it has been cited as a reason for a race for divorce in the
EEA rather than for reconciliation. As a difference of timing as close as 5 minutes
before the other partner filed their divorce petition (in a region that could have been
favourable to him/her) could make a huge difference to the case.32 But as far as the
requirement of filing a case in UKUT is concerned, the judicial reliance and focus is
on the nationality/ EEA residence of the parties33 and not on their domiciles.34 It
could have a no. of consequences such as in case of people who have settled in a
new land that does not grant domiciles to outsiders (e.g. due to paternity based
domicile system) they could have problems filing for divorce, but the UK has a huge
regard for domiciles in all cases in which the jurisdiction has to be decided for the
purpose of divorce.35
There is also the question of ‘domicile of parties’ in order to determine the jurisdiction
of a court under the Private International Law. The term Domicile is defined in the
Convention (HCCH 1961) Convention of 5 Oct, 1961 on the conflicts of laws relating
to the form of testamentary dispositions; and discussed in detail in Convention of 15th
June, 1955 relating to the settlement of the conflicts between the law of nationality
and the law of domicile. UK being a signatory to the HCCH Convention on Divorce
and also being the Country which boasts a very high no. of International marriages
on its land has an extensive application of the principle of deciding jurisdiction based
on parties’ domiciles.
27 Ray v Sekhri [2014] EWCA Civ.119
28 Divall v Divall [2014] EWCA95 (Fam)
29 [2005] UKHL 42
30 ibid
31 n 23
32 LaurieGoering, ‘International DivorceA murky pit’ 14th Nov, 2008 Chicago Tribune
33 Shared Gbadebo Kareem v Secretary of the State for the Home Department [2014] UKUT 24 (IAC)
34 Colin Yeo, ‘Proxy marriageand domicile’21st July,2014 Free Movement
<http://www.freemovement.org.uk/proxy-marriage-and-domicile/>
35 “domicile… is a concept of the Common Law” Baroness Halesaid in Mark v Mark 2005 UKHL 42

5. Divorce according to the law of England is the means to put an end to the
relationship formally.36 For those who have lived outside the boundaries of UK, in
order to obtain a divorce through Courts in UK, they need to show the jurisdiction of
UK in their circumstances.
Article 3(1) of Brussels II revised37 allows the jurisdiction of divorce, legal separation
and annulment of marriage to the court where spouses habitually reside or had last
resided (one of them still being there), or the respondent/ applicant habitually
residing there. Same rule applies for joint applications (uncontested divorce).
Habitual residence has been defined by Dr. Borras38 as, ‘The place where the
person has established on a fixed basis the permanent or habitual centre of his
interests with all the relevant factors been taken into account’. A habitual residence
of 6 months has to be proved before filing for divorce in UK.
The wisdom behind an equal distribution of wealth accumulated during marriage is
that the law holds equally important the bread-winner and the home-maker and
regards the money as a joint effort of the family,39 but consideration is given to each
case like the retiring husband who will not be able to pay huge sum of money to
maintain his wife,40 provided he/ she acts transparently in their filing of records of
wealth as the Supreme Court has quite willingly reopened the cases of two
millionaires who had defrauded the court earlier to avoid the payment of half of their
wealth in Divorce.41 The only way to avoid paying out huge sums in divorce case is
to form pre-nuptial agreement at the time of marriage which the court may assign a
heavy weightage to42 though the same is not guaranteed as the courts are proving
themselves ‘not bound by pre-nuptial agreements’43 While the London-based
advocates filing for the plaintiff would in any case try their best to convince the courts
to keep the division of wealth strictly to 50-50 between both partners.44
36 The term "divorce"is now applied to decrees of dissolution of marriageon the petition of either party
thereto. The soleground for divorceis that the marriagehas broken down irretrievably (Matrimonial Causes
Act 1973 s.1(1) Jowitt’s Dictionary of English Law4th Ed.
37 Council regulation (EC) No. 22 01/2003 of 27 Nov 2003 concerningjurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of parental responsibility,repealing
regulation EC No. 1347/2000
38 Marilyn Stove, ‘How do you demonstrate habitual residence’Oct5, 2011 Stowe Family Law LLP ,
<marilynstowe.co.uk/2011/10/05/how-do-you-demonstrate-habitual-residence/>accessed 16th May,2016
39 ibid
40 Paul Cheston, ‘Ex-wife of millionarehorsesurgeon told to get a job by judge in landmark divorceruling’.23rd
Feb, 2015 Evening Standard <www.standard.co.uk/news/london/get-a-job-judge-tells-ex-wife-of-millionare-
vet-in-landmark-blow-to-meal-ticket-settlement-10064662.html>accessed 16th May, 2016
41 Jenny Anderson, ‘London upholds its commitment to remain the divorcecapital of the world’14th Oct, 2015
Quartz <qz.com/523777/London-upholds-its-commitment-to-remain-the-divorce-capital-of-the-world/>
accessed 16th May, 2016
42 Owen Bowcott, ‘How London earned its status as divorcecapital of the world’3rd March,2013 The Guardian
www.theguardian.com/money/2013/mar/03/london-status-divorce-capital accessed16th May,2016
43 Robert Mendick, ‘Heiress Katrin Radmacher and the £100m prenuptial disagreement’ The Telegraph Sunday
12 June 2016 < http://www.telegraph.co.uk/women/sex/divorce/8068458/Heiress-Katrin-Radmacher-and-
the-100m-prenuptial-disagreement.html> accessed June 12, 2016
44 n 34

6. The courts are not any less equipped to address the issue in fact there is adequate
law and a judicial discretion to decide how the family money should be distributed.
It is The Matrimonial Proceedings and Property Act 1970 that empowers the courts
to grant, along with divorce, financial provision orders45 in which one party is ordered
to make monetary payments to the other party; Property adjustment orders46 in
which the court orders one party to transfer property in the name of the other. But the
sum/ ratio of division is left to the court to decide according to the circumstances of
each case and this is how a wide discretion is enjoyed by the courts in UK as to how
much funds should be awarded to the pleading party. In this regard, the 50-50 rule is
not taken as a starting point but just as a guiding principle as the establishment of a
fixed starting point would limit the wide discretion of courts.47
Conclusion
As the social setup in societies is a subject to change with the passage of time, the
only good law could be the one which moves with those changes. Unfortunately, it is
not quite possible to keep updating the law according to the most recent
developments in the lives of residents of any place, hence the only option left is to
leave it to the judgments of the learned judges to look into each case and decide
what justice could be. The Judicial officers living in the same time could reason those
queries quite well. With regard to divorce law, UK has indeed upheld its status of the
divorce capital of the world by showing a constant flexibility in multiple dimensions as
the case of the day requires.
45 Section 23 Matrimonial Proceedings and Property Act 1970
46 Section 24 Matrimonial Proceedings and Property Act 1970
47 White v White [2000] WL 1544588 p. 4

7. Bibliography
Matrimonial Proceedings and Property Act 1970
Strader v. Graham 10 How [U.S.]
Hunt v. Hunt 72 N.Y. 217, 228 (N.Y. 1878)
Emine Samer, ‘Keen to leave your rich husband? Came to London the divorce
capital of the world’, The Guardian 24th
Feb, 2015
<www.guardian.com/lifeandstyle/shortcuts/2015/feb/24/divorce-rich-husband-london-
english-law>
Francis Gibb, ‘Divorce tourists take over the court’ 10th
April, 2012 The Times Law
<www.thetimes.co.uk/tlo/law/article3379227.ece>
<www.gov.uk/government/uploads/system/uploads/attachments-
data/file/268020/marriage.pdf> accessed 1-5-16
R. v M. [2011] EWHC 2132 (Fam.); the recognition of marriages in the past was wide
enough to include marriages at sea however it’s not currently recognised due to the
legal requirement of an identifiable premises to solemnise the marriage.
KC & NNC v City of Westminster social and community services department IC 2008
EWCA Civ. 198; a case where marriage of a person (British National) incapable of
entering in a marriage contract was annulled though it was acceptable in his home
(Paternal) country.
It was formed on 1st
June, 1970 and it came into force on 24th
Aug, 1975
http://www.hcch.net/en/instruments/conventions/status-table/?cid=80
Messers P. Bellet and B. Goldman, ‘Convention on the recognition of divorces and
legal seperations, p.2 Permanent Bureau of the conference 2c, Javastraat, The
Hague, Jan 1971
Leo Mirani, ‘Malta to legalise divorce after bitter referendum’ The Independent 30th
May, 2011 <www.independent.co.uk/news/world/europe/malta-to-legalise-divorce-
after-bitter-referendum-2290802.html> accessed 7th
May 2016
Marriage Act of 13th
June 1929
The law office of Jeremy Moorley, ‘Conditions for obtaining divorce in Neitherlands’
<www.international-divorce.com/d-netherlands.html> 10th
May 2016
In a time of torture : The assault on justice In Egypt’s crackdown on Homosexual
conduct: Laws affecting male homosexual conduct in Egypt, Human Rights watch
Philip Smucker special to the Christian science monitor, ‘Polygamy goes on trial in
Egypt’ July 16, 2001 <http://www.csmonitor.com/2001/0716/p6s3.html> accessed 9th
May 2016

8. Choudhri Nihara K, ‘The complete guide to divorce law’ New York (2004): Citadel
press p. 8
Jeremy D. Morley, ‘Comparing divorce jurisdictions in International family law,
Procedure may trump substance’, June 2008 <http://www.international-
divorce.com/Comparing-divorce-jurisdictions-in-international-family-law> accessed
10-5-2016
CHAPTER 8 – Domicile Booth & Schwarz: Residence, Domicile and UK Taxation,
15th Edition <http://uk.practicallaw.com/books/9781847667670>
(1869) LR 1 SC & D 441 p. 458
Ray v Sekhri [2014] EWCA Civ. 119
Divall v Divall [2014] EWCA 95 (Fam)
[2005] UKHL 42
Laurie Goering, ‘International Divorce A murky pit’ 14th
Nov, 2008 Chicago Tribune
Shared Gbadebo Kareem v Secretary of the State for the Home Department [2014]
UKUT 24 (IAC)
Colin Yeo, ‘Proxy marriage and domicile’ 21st
July, 2014 Free Movement
http://www.freemovement.org.uk/proxy-marriage-and-domicile/
“domicile… is a concept of the Common Law” Baroness Hale said in Mark v Mark
2005 UKHL 42
The term "divorce" is now applied to decrees of dissolution of marriage on the
petition of either party thereto. The sole ground for divorce is that the marriage has
broken down irretrievably (Matrimonial Causes Act 1973 s.1(1) Jowitt’s Dictionary of
English Law 4th Ed.
Council regulation (EC) No. 22 01/2003 of 27 Nov 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility, repealing regulation EC No. 1347/2000
Marilyn Stove, ‘How do you demonstrate habitual residence’ Oct 5, 2011 Stowe
Family Law LLP , <marilynstowe.co.uk/2011/10/05/how-do-you-demonstrate-
habitual-residence/> accessed 16th
May, 2016
Paul Cheston, ‘Ex-wife of millionare horse surgeon told to get a job by judge in
landmark divorce ruling’. 23rd
Feb, 2015 Evening Standard
<www.standard.co.uk/news/london/get-a-job-judge-tells-ex-wife-of-millionare-vet-in-
landmark-blow-to-meal-ticket-settlement-10064662.html>accessed 16th May, 2016
Jenny Anderson, ‘London upholds its commitment to remain the divorce capital of
the world’ 14th
Oct, 2015 Quartz <qz.com/523777/London-upholds-its-commitment-
to-remain-the-divorce-capital-of-the-world/> accessed 16th
May, 2016

9. Owen Bowcott, ‘How London earned its status as divorce capital of the world’ 3rd
March, 2013 The Guardian www.theguardian.com/money/2013/mar/03/london-
status-divorce-capital accessed16th May, 2016
1
Robert Mendick, ‘Heiress Katrin Radmacher and the £100m prenuptial
disagreement’ The Telegraph Sunday 12 June 2016 <
http://www.telegraph.co.uk/women/sex/divorce/8068458/Heiress-Katrin-Radmacher-
and-the-100m-prenuptial-disagreement.html> accessed June 12, 2016
White v White [2000] WL 1544588 p. 4