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Jurisdiction of the English courts in divorce cases

View profile for Jessica Izzo
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If your marriage has an international element, the question of jurisdiction may arise in case of divorce. In fact, the English courts are not entitled to deal with your matrimonial affairs just because you are a British citizen or currently live in England. On the contrary, the court’s jurisdiction depends heavily on the relevant facts of the case and the family solicitor should advise you in accordance to the Law, particularly by referring to section 5 of the Domicile and Matrimonial Proceedings Act 1973 which incorporates Council regulation (EC) No 2201/2203 (simply known as Brussels IIa). It may be the case that you have an appropriate connection with two or more countries of the European Union. In such circumstances, the divorce must be heard by the competent court of the country where the application for divorce was first filed. Different rules may apply if you live outside of the European Union.

Generally speaking, it can be stated that the English courts will have jurisdiction to hear your case if one of the following grounds is satisfied:

  • Both of you (“the spouses”) have your habitual residence or are domiciled in England and Wales;
  • Both of you had habitual residence in England and Wales and one of the spouses still resides here;
  • Either the respondent (the person against whom the application is filed) or the petitioner (the person who applies) is habitually resident in England and Wales and the petitioner has lived here for at least one year immediately before the filing of the application;
  • The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months before the filing of the petition;

It may useful to know that the above-mentioned jurisdictional grounds also apply to a same-sex couple under “The Marriage (Same-Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014”. This also allows the Courts of England and Wales to step in and assume jurisdiction if you live in a country whose legal system does not recognise same-sex unions.

To better understand the jurisdictional bases for filing a divorce application within the courts of England and Wales, you should get familiar with the expressions “habitual residence” and “domicile”.

The habitual residence may assume different meanings depending on the context in which the term is used and the type of legal case you are referring to. In this specific circumstance, you can say that you are habitually resident in the country where you live, bearing in mind that, according to Brussels IIa regulation, a person can only have habitual residence in one place at any given time. Judge Ryder in the case Z v Z [2010] 1 FLR 694 provided some guidance by saying that the habitual residence in a certain country is not lost if you have lived in another country for a long time since the centre of interests of one person must have a stable character but does not have to be permanent.

On the other hand, there is no simple definition of “domicile”. Broadly speaking, in private international law a person is said to be domiciled in the specific country where his permanent home is located for legal and/or tax matters. Everyone has only one domicile at a time, although this can change in the course of life.

In this regard, your “domicile of origin” is the one where you were born and it is never lost even if it may not be operative when you acquire a “domicile of choice”. Having said that, the domicile of origin revives when the one of choice is lost until another domicile of choice is acquired. The “domicile of choice” can be acquired by any person over 16 years of age and it requires being resident in that country and an intention to remain there permanently or indefinitely. For children up to 16 years of age, it is established that the domicile of a child in the case of married parents is the same as that of the father irrespectively of the place of birth. On the contrary, if the parents are not married it is the mother’s domicile. If married parents separate, the child usually acquires the domicile of the parent with whom he lives.

Finally, a relevant factor to consider when dealing with foreign elements in divorce matters is the recognition of foreign decrees by the English courts. In fact, you may be free to remarry in England and Wales without obtaining an English divorce if the English courts recognise the foreign decree. Otherwise, according to the FLA 1986, the parties are still considered to be legally married and they will have to petition for a divorce through the English courts if they wish to remarry.

It is always recommended to seek legal advice from professionals who specialise in international law to liaise with cross-border matters.

Disclaimer: These articles are for information purposes only and are not intended as legal advice. Professional advice should always be obtained before applying any information to particular circumstances.

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