Jurisdiction in Divorce and Dissolution of Civil Partnership

With an increasingly mobile global population, it is more and more common for people to live and work away from their country of origin. If a married couple with connections to more than one country get divorced, the country in which the divorce takes place can have profound consequences for them in terms of the financial settlement, the ease (or not) of conducting proceedings in a foreign country, often with a language barrier to contend with and issues relating to children. 

When commencing divorce or civil partnership dissolution proceedings in England and Wales, it is important to be sure, not only that the courts in this country have the ability to deal with the divorce adequately, but also that this country is the best place for the divorce to proceed.

The European Union

The United Kingdom is a member of the European Union. With the exception of Denmark, the countries of the EU have decided to use a common framework for establishing whether the courts in a given country have the legal standing to deal with a divorce. This standing is known as 'having jurisdiction' to deal with a divorce.

If more than one EU member state (other than Denmark) has jurisdiction to deal with a divorce then the courts of the member state in which the process is begun first will have exclusive jurisdiction with no exceptions. Speed and taking timely legal advice really can be of the essence.

There are two really important concepts to grasp when considering the issue of jurisdiction within the EU or pretty much anywhere else in the world: habitual residence and domicile. 

Habitual residence

There have been literally hundreds of court rulings on this issue and deciding someone’s habitual residence can be very complicated indeed. Put simply, your country of habitual residence is the place you live your life now. For the majority of people getting divorced in England and Wales (Scotland and Northern Ireland have their own separate legal systems) they will both be habitually resident here. The issue of jurisdiction starts and ends with the ticking of a box in the divorce or dissolution petition to confirm this.

Going away on holiday or on business would not change your habitual residence and even long trips abroad would not necessarily result in a change of status. Effectively, habitual residence is where the parties live on a day-to-day basis with a sufficient degree of continuity in place so as to be described as settled. However, you can imagine situations in which someone's habitual residence changes quite quickly.  For example, someone might accept a job abroad, arrange accommodation and schooling for their family and move to a new country. In all likelihood, their habitual residence and that of their family could easily change over the short period of the move and travel to their new home, even if they are not planning to emigrate forever.

Domicile

Domicile is a more difficult idea to get a handle on. It is fundamentally a legal concept used to ascertain a link between an individual and a particular country's legal system. It is not the same as nationality, though in many cases domicile and nationality will be the same, and it is not categorised solely by residence.

The key points of domicile are as follows:

  • A person's domicile must have a single legal system, therefore it is not possible to be domiciled in Great Britain - one would be domiciled in either England and Wales, Scotland or Northern Ireland
  • Everyone has a domicile
  • Only one domicile may be attached to a person at any one time
  • A person's domicile can alter as their circumstances change

However, take the example above of a person taking a job in a new country. Their habitual residence might change quite quickly as they settle into their new life abroad but it could take many years for them to establish a new domicile there, if indeed they ever did. It depends on a wide range of factors worked out in decades of legal rulings.

Complications

Perhaps you can see now how complicated the situation can get. A couple could have two different habitual residences between them and it may not be clear what those habitual residences are at any given time. They could have different domiciles from each other and/or from their habitual residences. The number of countries potentially able to deal with their divorce can mount up quickly.

Although issues of language and convenience are really important too, much more significant is the fact that the many countries of the world deal with the financial consequences of divorce very differently. Especially if there is going to be a dispute as to the appropriate financial settlement, the country in which the divorce takes place could be make or break for either party. Here are just some of the potential issues:

  • Some countries treat men and women differently
  • There are legal systems that will financially penalise a party who has committed adultery
  • Different territories deal differently with property acquired before, during and after the marriage.  Scotland for example has a reasonably clear cut way of dealing with matrimonial and non-matrimonial family property, unlike England and Wales
  • Some countries adopt a presumption of a 50/50 split whereas others do not
  • The availability of maintenance varies widely throughout the world
  • There can be real difficulties in attempting to enforce a financial settlement upon divorce reached in one country against property located in another

The jurisdiction race

With issues like these in the mix, it is no wonder that parties can find themselves racing each other to establish jurisdiction in a country they believe will best preserve their own interests. As we said above, there is a pretty stark first come first served rule in the case of EU jurisdiction races. While getting the papers to court first may not be decisive when the 'race' is between England and Wales and somewhere other than a different country in the EU (e.g. Scotland, Dubai or the USA), acting fast can still be extremely important.

Proceedings to dissolve a civil partnership

Under the civil partnership legislation, jurisdiction for the dissolution of a civil partnership is governed by similar regulations as for divorce in England and Wales. Bearing in mind that not all countries recognise either civil partnerships or same sex marriages, there may be specific jurisdictional issues to consider if there are connections with other countries.

Determining which country's courts should deal with a divorce or civil partnership dissolution is crucial in achieving the best possible outcome for the individual. The situation can change quickly and it is vital to be prepared.

Advice from JMW divorce solicitors

In the case of a multi-national marriage or civil partnership that has broken down irretrievably, determining which court should hear the divorce is crucial in establishing the probable outcome for the individual.

With over 20 years of experience, Angela Moores leads a team of family law lawyers dedicated to applying their wealth of legal expertise to each individual case so as to ensure the most favourable divorce settlement for each client.

The family law department at JMW specialises in high-value financial settlements on divorce and aim to deliver top quality legal services that are cost effective and results driven. The partners of the family law division are conciliatory, yet direct, and completely client focused.

Please contact us on 0800 652 5577 or complete our online enquiry form and we will endeavour to respond to your enquiry without any initial cost or obligation within 24 hours.

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