Valid Divorces

Why is it important to have a valid divorce?

The question whether you have a valid divorce is important in respect of the right to re-marry, entitlement to widow(er) pensions and state benefits, in relation to what would happen in the event that you die and also in relation to financial issues. A divorce in itself frees a person to re-marry. It does not sever the financial ties, so you may still find yourself liable for bills, the mortgage etc... What it does is provide the Court with the power to sever the financial ties for you. Should you re-marry without dealing with this, you may find you have to pay financial liabilities if your former spouse fails to pay.

Do courts recognise foreign divorces?

For a foreign divorce to be effective, it must have the effect of dissolving the marriage in the place where the divorce was obtained. The Courts in England and Wales generally recognise the validity of divorces obtained abroad. However, if the local law, where the divorce was obtained, prohibits re-marriage within a defined period, any subsequent marriage ceremony within that period may be invalid.

Divorces obtained within the EU are automatically recognised as valid. For divorces outside of the EU it must be shown that one or other of the parties to the marriage was habitually resident in, domiciled in or a national of that country. Recognition of the divorce may also be refused where:

• The Court granting the divorce had no jurisdiction to do so
• Notice was not given to the other party to the marriage without good reason
• The other party was not allowed an opportunity to take part in the divorce process
• There is a lack of documentary proof of divorce
• Where it would be contrary to public policy

If there were no divorce proceedings a divorce may still be valid, but more rigorous tests are applied. It is not effective if either party was "habitually resident in the UK throughout the period of one year immediately preceding" the date the divorce was obtained. Also, a divorce without proceedings would leave the Courts here with no power to deal with financial issues.

You do not have to divorce in England or Wales to be able to ask the Courts to deal with the finances. Where a foreign divorce does not deal with the finances then the Courts in England and Wales have jurisdiction to deal with these.

Where there is doubt over marital status the Courts in England and Wales can be asked to provide a declaration of the marriage status of the parties.