Jurisdiction for the family courts of England and Wales (Divorce and Dissolution)
If you are looking to start divorce or dissolution proceedings in England and Wales then you should check whether the family courts have jurisdiction to issue these proceedings. If the Court does not have jurisdiction, it cannot hear your case and cannot make orders in relation to your marriage or civil partnership.
Jurisdiction is essentially whether the Courts in a particular country can use their laws to assist you. If England and Wales does not have jurisdiction then its laws cannot be applied to you and you will have to approach the family courts in another country where its laws do apply. Whether a particular country has jurisdiction will depend on how that specific country applies its own laws. You should seek advice from a local family lawyer if you are unsure of another country’s approach to jurisdiction for family matters.
In the majority of cases, jurisdiction will not be of great concern. However, if you or your spouse are living abroad or have recently moved to England and Wales then the appropriate jurisdiction for divorce may require more thought.
If you want to start divorce proceedings in England Wales, you must satisfy the Court that it has jurisdiction to grant the divorce on the basis that you and/or your spouse are at least one of the following:
a. Habitually resident in England and Wales for at least 6 or 12 months;
b. Domiciled in England and Wales; or
c. Have a sufficient connection to England and Wales (residuary).
Habitual residence
‘Habitual residence’ can be broadly defined as where you live your day-to-day life. Determining habitual residence is usually a factual matter based on your home and work address; where your children go to school; where your GP based etc.
Every person will have a country of habitual residence, but this can change if you move or spend a significant amount of time abroad. It is not defined by nationality, tax or visa status but these are often strong influencing factors to determine whether someone is habitually resident.
If you choose to rely on the habitual residence jurisdiction ground, if you are domiciled in England and Wales (see below) you must have been habitually resident here for at least 6 months before issuing the proceedings. If you are not domiciled here, then you must have been habitually resident at least 12 months before issuing proceedings.
Domicile
Domicile in family law is distinct from domicile for visa or tax purposes. It is a unique concept governed by a person’s intention, rather than as a matter of fact, making it much harder to definitively establish a person’s domicile compared to their habitual residence.
Domicile in this context refers to the country a person considers to be their ‘home’.
No person can be without a domicile and a person can only possess one domicile at a time. Whilst a person’s domicile can change during their life, it is strongly presumed to continue from birth unless one can prove it has been abandoned in favour of another domicile.
When a person is born, they have what is known as domicile of origin. If the person’s parents were married at the time of their birth, domicile of origin follows their father’s current domicile; if the parents were unmarried then the domicile of origin follows their mother’s current domicile.
However, it is possible for someone to abandon their domicile of origin or dependency and replace it with domicile of choice. In order to do so, the person must have formed the intention to call their domicile of choice ‘home’ for the rest of their life and never to return to their domicile of origin on a permanent basis. To prove this intention, one could point to facts such as:-
· Learning the language and adopting local culture;
· Purchasing property or setting up a business;
· Making a will under local law;
· Being registered to vote;
· Becoming a citizen or being granted indefinite leave to remain;
· Cashing in any assets held in their domicile of origin;
· Nationality of their children; etc.
There is ultimately a non-exhaustive list of examples one could use to show they have now acquired domicile of choice.
Children necessarily retain their domicile of origin until they are at least 16. The exception to this is if the relevant parent’s domicile of origin is replaced by domicile of choice. The child under 16 will then acquire the relevant parent’s domicile of choice as their domicile of dependency.
Sufficient connection to England and Wales
It may also be possible to apply for a divorce in England and Wales even if the habitual residence and/or domicile jurisdictional grounds are not met. However, these applications are incredibly rare and can only be used as a last resort by those who cannot apply for divorce in any other jurisdiction. This is usually as a result of local laws prohibiting marriage (and subsequently divorce) between same sex couples or where divorce is not legally possible, such as in the Philippines or the Vatican.
Why does domicile matter?
If you or your spouse is domiciled in England and Wales (whether by origin or choice), you may be entitled to apply for a divorce here even if you are not habitually resident. For example, if you have domicile of origin in England and Wales but have moved abroad and for all intents and purposes ‘live’ in another country, you may still rely on domicile to progress your divorce in England and Wales.
Since ‘no-fault divorce’ was introduced in April 2022, it is no longer possible to prevent (contest) the divorce on the basis that the respondent believes the marriage may not have irretrievably broken down. Thus the only way to contest an application would be on the basis that the family courts do not have sufficient jurisdiction to grant the divorce. It is therefore important to establish jurisdictional grounds before issuing proceedings to minimise the risk of contested proceedings.
The ultimate benefit of divorcing under the law of England and Wales means that you would also be entitled to issue proceedings for financial remedies upon divorce and ancillary child arrangements under this jurisdiction. This means that often, even if assets or children are not physically present, a Judge in England and Wales could still have the power to make orders in relation to them.
Regardless of the jurisdiction, you can only get divorced once meaning that if you choose to divorce according to a different country’s law under their jurisdiction, you will still be recognised as being divorced in England and Wales. You may still be able to benefit from ancillary family proceedings in England and Wales if you get divorced abroad but this is often a more costly and complicated process than if you’d gone through the divorce here from the start.