Before you can ask the court in a particular country to do something, such as deal with an application for divorce, you must first check that it has jurisdiction to do so.
In addition to jurisdiction, it is also important to consider whether England & Wales would be the most appropriate place (“forum”) for the divorce, and any associated financial proceedings to be dealt with if one or both of the parties have connections to other countries, or indeed which jurisdiction would be most favourable.
What is jurisdiction?
This is essentially a) the court’s power to be able to make legal decisions and judgments or b) a territory over which the legal authority of a court extends.
Whilst the UK has four jurisdictions, there are actually three separate legal systems: England & Wales have a combined legal system, and Scotland and Northern Ireland have independent systems. This article refers to the law in England & Wales only.
Jurisdiction to start divorce proceedings
To be eligible to start divorce proceedings in England & Wales, the applicant or applicants must meet at least one of the jurisdictional criteria. These are set out in new provisions in the Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, which were added to clarify the position post Brexit.
The criteria are based on two key concepts, namely “habitual residence” and “domicile”. These terms have particular definitions which are unique to this area of law, and so caution must be exercised when considering them.
Habitual residence
This can be difficult to define, but is usually where a person lives most of the time and where they have their “centre of interests” e.g. where you have community ties and where your children go to school.
Domicile
This can be extremely difficult to define. Broadly, a person is domiciled in a country if they consider it their permanent home and to which they intend to return. Everyone has a domicile of origin – the country in which their father was domiciled when they were born. It is possible to change a domicile permanently by moving to another country and severing all ties with a domicile of origin, intending to live there forever. As such, domicile can change over time.
Jurisdictional criteria
The criteria (which are not affected by nationality or where you got married) are as follows:
- Both spouses are habitually resident in England & Wales;
- The spouses were both last habitually resident in England & Wales;
- The respondent is habitually resident in England & Wales;
- The applicant is habitually resident in England & Wales and has resided there for at least one year immediately before the application was made;
- The applicant is domiciled and habitually resident in England & Wales and has resided there for at least 6 months immediately before the application was made;
- Both spouses are domiciled in England & Wales;
- Either spouse is domiciled in England & Wales.
Appropriate forum for divorce
Disputes in relation to where a divorce should take place can be difficult and costly. Consideration needs to be given, and advice taken in the appropriate jurisdictions, about what is possible in terms of divorce and financial applications, so as to weigh up the pros and cons of every option and the chance of success of challenging proceedings elsewhere.
Post-Brexit, there is no longer a race to be first to issue. Instead, the test is which country has the “closest connection” and as such where would be the most appropriate forum. Issuing quickly can however have an impact, and as such it is important to take advice as soon as possible if there are potentially jurisdiction issues in your case.
Stephens Scown can advise you in relation to divorce in England & Wales and in respect of any potential jurisdiction or forum dispute. It can be a complicated area of law and it is important to take early specialist advice.