Declaring bankruptcy in England and Wales if you live abroad

If you are insolvent and live in England or Wales, but your main estate is located abroad, you may still be able to declare bankruptcy.

The process can be complex, and you will need to provide proof of insolvency to the court. You will also need to appoint a trustee to manage your estate. If you are granted bankruptcy, all of your assets will be frozen and you will be discharged from your debts after 12 months.

However, declaring bankruptcy can have serious consequences, including the loss of your home and possessions. You should therefore seek professional advice before taking this step.

Can you declare bankruptcy in England or Wales if you live abroad?

An individual can make an application for a Bankruptcy Order to be made against themselves only on the ground that he is unable to pay his debts as they fall due. Applications can only be made online and the process is dealt with by an ‘adjudicator’, who is an officer of the Insolvency Service.

The insolvency process is governed by the Insolvency Regulations (IR), comprising The Insolvency (Amendment) Regulations 2000 and the Recast Insolvency Regulation. Central to the IR is the concept that an individual should begin insolvency proceedings in the jurisdiction of their Centre of Main Interests (COMI), which is defined as the jurisdiction within which they are most closely connected. This means it will either be:

• the country where they mainly carry out the trade profession
• the country in which they habitually reside

The adjudicator in England and Wales cannot deal with bankruptcy applications by any person living in any EU member state (except Denmark), Scotland or Northern Ireland, unless the debtor can show that their COMI is in England and Wales and has been for 6 months prior to the bankruptcy application. If this does not apply, then debtors living in these countries must apply for bankruptcy in their own country.

However, the adjudicator does have the power to make bankruptcy orders where the debtors COMI or residence is Denmark or outside the EU and where the debtor has been ‘domiciled’ or carried out business in England and Wales at any time in the 3 years preceding the application for a bankruptcy order. These powers were recently used to determine the case of Budniok v The Adjudicator, Insolvency Service (Re Budniok) [2017] EWHC 368 (Ch.).

‘Domicile’ is defined as the country in which a person is considered by law to have his permanent home. Note that a person cannot have more than 1 domicile.

In summary, a person can declare bankruptcy in England and Wales if they do not live in that jurisdiction but do live in Denmark or any other country which is not an EU member state provided they can show they had lived or traded in the jurisdiction at any time in the preceding 3 years.

How do you declare bankruptcy if you live abroad?

The procedure for declaring bankruptcy is the same wherever the debtor is now living. Provided the debtor meets the jurisdictional criteria, application is made online through the online portal on GOV.UK. There is no need for any personal attendance at court or elsewhere.

The application must contain a statement which:

• states that the debtor is unable to pay his debts
• states that the debtor is not aware of any pending bankruptcy petitions
• provides details as to whether any bankruptcy order has been made in respect of any debts which are the subject of the bankruptcy application
• includes information as to any debt advice taken by the debtor before completing the application and verification of the accuracy of the information provided

A bankruptcy application costs £680 and applicants need to provide full disclosure of their personal and financial affairs including all debts, liabilities, income and assets in order to prove that they are unable to pay their debts. Details of all asset disposals within the preceding 5 years must also be provided.

The Insolvency Service adjudicator appointed to deal with the application will get in touch with the debtor by email and will make verification checks, including a search of the Electoral Roll, to determine the residence of the debtor.

What happens after a bankruptcy order has been made?

Once a Bankruptcy Order is made, the adjudicator delivers a copy of the order to the debtor and the Official Receiver. The Bankruptcy Order dates from the date the bankruptcy application was acknowledged by the adjudicator.

The Official Receiver will be appointed as the Trustee in Bankruptcy and will place a notice about the order in The Gazette. They will then apply to the Chief Land Registrar to register the Bankruptcy Order as a Receiving Order in the Register of Writs and Orders and will enter the details on to the Individual Insolvency Register.

The remainder of the process is as all other bankruptcy procedures: the assets of the bankrupt at the time of the bankruptcy will vest in the Trustee in Bankruptcy who realises and distributes assets for the benefit of the creditors.

Whilst the bankrupt will generally be discharged after 12 months, the assets falling within the bankruptcy estate continue to vest in the Trustee until he has completed the realisation and distribution process. The Trustee has three years from the date of the Bankruptcy Order to realise any interest in the debtor’s main family home, otherwise the interest will cease to vest in the Trustee.

There is no restriction on the movement of a bankrupt, who may move abroad after the order is made, although all assets vesting in the Trustee should remain in England and Wales.

Are foreign assets considered in a UK bankruptcy?

By section 283 of the Insolvency Act 1986, all of the assets and property in which the debtor has a beneficial interest at the date of the bankruptcy fall within the bankruptcy estate. There are certain items which are exempt, including the debtor’s tools of trade and items required to meet basic domestic needs.

All the debtor’s assets fall within the estate and vest in the Trustee regardless of their whereabouts.

Are foreign creditors considered in a UK bankruptcy?

All creditors of the debtor, including foreign creditors can make a claim in the bankruptcy. Issues may arise where foreign creditors would have different, and more beneficial, distribution and priority rights had the debtor been made bankrupt in the creditor’s jurisdiction and they may have the right to commence secondary insolvency proceedings in their own jurisdiction. To avoid this the Trustee in Bankruptcy may undertake to give those creditors the same rights they would have held in their own jurisdiction.

This is case specific and legal advice should be taken as to the options available to the creditor and the Trustee in Bankruptcy.

Conclusion

It is possible for individuals living abroad to declare bankruptcy in England or Wales, but the process may be more complicated than for those residing in the UK. In order to declare bankruptcy in England or Wales, an individual must have a “sufficient connection” to the jurisdiction, which can be established through factors such as having a UK bank account or property, or having previously lived in the UK.

Additionally, the individual must meet the eligibility criteria for bankruptcy, such as being unable to pay their debts. It is recommended that individuals seeking to declare bankruptcy while living abroad seek the advice of a UK-based insolvency practitioner to navigate the process.