Deciding the most appropriate jurisdiction to hear a divorce case can be crucial to the outcome but it is not always straightforward.
When completing a divorce petition, it is important that care is taken to persuade the Court that it has sufficient jurisdiction to deal with the divorce.
This is dealt with at Section 5 of the divorce petition. The section requires that a box or boxes are ticked to highlight the jurisdictional grounds for the petition being filed in England and Wales.
The section sets out six possible reasons that you will want to consider. They divide quite evenly into grounds based on domicile and/or habitual residence.
Habitual residence
Of these two concepts habitual residence is arguably the simplest to understand. It is quite literally the jurisdiction in which you have been habitually resident. Habitual residence requires an element of ‘settled purpose’. Temporary or short absences during the period in question shouldn’t get in the way of successfully relying on habitual residence in the petition.
What if there has been no habitual residence however? It is in that situation where the options relying on domicile come into their own.
Domicile
The concept of domicile is less tangible and obvious. Determining it can be difficult to do in some instances. What is clear is that everyone has only one domicile and it has to be in a place that has only one legal system. For example, one cannot be domiciled in Great Britain, since there are effectively three legal systems in operation there: England and Wales, Scotland and Northern Ireland. If you are to rely on domicile to start proceedings in England then your domicile will need to be ‘England and Wales’.
The main issue that makes domicile quite tricky to determine is the fact that it can change throughout one’s life. It begins as the place where the person is born. It is then displaced if, after the age of 16, the person relocates to another jurisdiction with the intention of continuing to reside there permanently, or at least indefinitely. There needs to be both elements of intention and residence for the original domicile to be displaced in this way. Provided that is the case, a new domicile will be acquired.
There can be all manner of nuances to the question of domicile and habitual residence, some of the factors taken into account are:
- Where does a party usually live, work, study, or enjoy leisure time?
- What is the parties nationality
- If a party moves out of England or Wales, is this move only temporary?
- Does a party intend to move his/her affairs to another country?
- Where has a party retained his/her properties, even if rented out?
- Where is a party registered with their medical practice?
We frequently come across cases where there is more than one potential jurisdiction to commence proceedings. In that situation thought needs to be given as to where would be the most appropriate jurisdiction to hear the case and the different outcomes that would likely result from proceedings being commenced in one place as opposed to the other.
If you are faced with questions about jurisdiction always seek advice from solicitors experienced in dealing with the international family matters.
Andrew Barton is a divorce specialist and family law partner at Stephens Scown. To contact Andrew or any other family law matter, please call 01392 210700, email solicitors@stephens-scown.co.uk.