As family lawyers, we are increasingly faced with disputes involving international families who may work, live, travel or are connected to a number of different countries. In such cases, when a marriage breaks down, many people may have the option of bringing divorce proceedings not only in the courts of England and Wales but also elsewhere. We therefore frequently advise on what is known as the appropriate “jurisdiction” for a divorce. The term “jurisdiction” is used in this context to describe the appropriate court or country legal system to deal with the divorce proceedings.
In some cases, England and Wales may be one of a number of jurisdictions in which a divorce could take place. However for others, the parties may intend to divorce in England and Wales only to discover at an initial consultation meeting that this is not as straightforward as anticipated and the English courts may not have jurisdiction to deal at that time or indeed at all.
Currently, the courts of England and Wales will have the power to deal with a divorce in one of the following circumstances:
- The spouses are habitually resident here
- The spouses were last habitually resident and one of them still resides here
- The respondent is habitually resident here
- The applicant is habitually resident if he or she resided there for at least one year immediately before the application for divorce was made
- The applicant is habitually resident if he resided here for at least six months immediately before the application was made and he or she has his domicile here
- Both spouses are domiciled here
In the event that jurisdiction is not established in one of the above ways, the English courts may still have the power to deal with a divorce provided no other EU Member State has such power and the applicant is domiciled in England and Wales at the time the application is made.
In considering how to establish jurisdiction in England and Wales for the purposes of divorce, we need to look at the terms known as “habitual residence” and “domicile” more closely. Our article on ‘Habitual Residence & Domicile’ (hyperlink to the article) considers each of these terms in more detail.
Even if the divorce ultimately takes place overseas, this does not necessarily prevent a party from seeking financial relief on divorce in the jurisdiction of England and Wales. In order to make a financial application after an overseas divorce, a party would need to obtain permission from the courts. The courts will only give such permission, if there is a substantial or solid ground for making an application for financial remedy. This will depend again on a party’s domicile, habitual residence for one year or the existence of a matrimonial home in England and Wales.
Note – In the event that the UK leaves the EU on the terms of a withdrawal agreement or on a ‘no deal’ basis, the contents of this note will need to be revised.
These are complex issues and seeking specialist family legal advice is recommended. If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty or Alexandra Wilks.