The decision to divorce can be a tricky one. Once that decision is made, the question about where to divorce is mercifully straightforward for many couples, but not for all.
To divorce in England, you must have a connection to the country. The most obvious one is that you live in England, and the legal term for that (which then introduces a number of nuances) is that you must be "habitually resident". Despite being an important concept, there is no single and clear definition of habitual residence to be found in law but it broadly corresponds to where a person has their permanent or habitual centre of interests.
In a recent EU case, DL v PQ (C-61/24), the question arose as to whether a diplomat could be habitually resident in the country to which they are posted.
The case concerned a couple who were German nationals. The husband was posted to the German Embassy in Russia and his wife accompanied him. They were both on diplomatic passports and therefore immune in many respects from Russian jurisdiction under the Vienna Convention on Diplomatic Relations. Their marriage unfortunately broke down during his posting and the wife filed a divorce petition in Germany. The German court pronounced the divorce but (seemingly to the mutual surprise of the couple) under Russian law on the basis that the couple were habitually resident there when the divorce application was made. The wife appealed requesting that the divorce instead be pronounced under German law, which led to the German court referring the question at issue to the European Court of Justice (ECJ) for a determination.
The ECJ intimated that, often, diplomats (and particularly those who are subject to a principle of rotation where they move from country to country) will remain habitually resident in their home state (Germany in this couple's case). Despite the fact that they may spend years at a time living outside of their home state, it is likely that they will travel back home regularly, will keep financial and property interests back home, and will maintain friendships and family connections at home. Their presence in the country where they are posted is ultimately temporary and fortuitous.
However, the ECJ also said it cannot be ruled out that, in specific factual circumstances, a diplomat may be habitually resident in the country to which they are posted, for example if he or she privately acquires accommodation at post in order to settle there after the end of the posting.
England's laws on habitual residence were, up until the point of Brexit, aligned with the EU so, if England was still a part of the EU, this decision would have introduced greater clarity to England's laws. But, post-Brexit, this decision is not binding and it remains to be seen to what extent England will go its own way. There have been some mixed indications in that, in drafting its post-Brexit divorce laws, the Ministry of Justice said it intended to follow EU law for continuity and comity, but it then chose not to copy the wording of EU laws to the letter.
But the EU's decision certainly seems like one that England might sensibly have made for itself. It rings true with me personally: I, at one point, spent 3 years living in Beijing with my diplomatic partner and our young family. For 3 years we did all of the things that are characteristic of living in a place: we had an apartment that we called home, we went to work and school, we were registered with doctors and dentists, and we picked up the language (to varying degrees – my preschool children totally eclipsed me on that measure!). But there was never any question that our time there was temporary and that England is ultimately home (or, more dryly, where we remained habitually resident).
I can see, though, that the situation could be very different for another diplomat and his/her family – for example, on a posting closer to home where a spouse/partner is able to waive their diplomatic status and work in the local economy and integrate fully into the country and remain there on their own terms irrespective of the end of the posting.
Diplomatic life has many perks. But it is inevitable that, for a profession grounded in historical customs and traditions and codified only in high-level treaties, modern day diplomats are sometimes left in grey areas. With this ruling now made with relevance to England, it would be wise for any diplomatic couples facing relationship breakdown to approach the legal aspects carefully.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
