Establishing Jurisdiction in Divorce and Civil Partnership Dissolution

If a divorcing couple has connections with more than one country, there may be several potential options as to where any legal proceedings will take place. 

The choice of legal system can have profound consequences for either or both parties in terms of any financial outcome, the administrative ease (or difficulty) of conducting proceedings in a particular country, and what decisions need to be taken regarding any children. 

Before commencing divorce or civil partnership dissolution proceedings in England and Wales, it is important to be sure, not only that the courts here have jurisdiction to deal with the process, but also that this country is the most favourable place for the divorce to proceed. 

Establishing which country’s courts should deal with a divorce or civil partnership dissolution may be crucial in determining the outcome, particularly in any related financial proceedings. It is often essential to move quickly and we are here to provide you with authoritative advice, on an urgent basis if needed. 

To speak to a solicitor about matters relating to jurisdiction in divorce and civil partnership dissolution procedures, contact JMW on 0345 872 6666, or fill in our online enquiry form and we will get back to you.

Getting Things Right from the Start 

If the choice of jurisdiction is or could be a factor in your case, we will need to assess, very early on, in which territory you and/or your spouse or partner are habitually resident and where each of you is domiciled. These two concepts are really important.

Habitual Residence

There have been hundreds of court rulings on this issue and deciding someone’s habitual residence can be quite factually complicated. 

Put simply, your habitual residence is the place you live your life now. The majority of people getting divorced in England and Wales (Scotland and Northern Ireland have their own separate legal systems) will be habitually resident here. In that case, 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. The country of habitual residence is where the parties live on a day-to-day basis with a sufficient degree of continuity so as to be described as settled. 

However, someone's habitual residence can change quite quickly. For example, someone might accept a job abroad, arrange accommodation and schooling for their family and move to a new country over the course of a few weeks. That person’s habitual residence and that of their family could even change on the day of the move, even if they are not planning to live in the new country forever.

Domicile

Domicile is a more difficult idea to get a handle on. It is, fundamentally, a legal concept used to establish 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. A person’s domicile can be different from their habitual residence. 

Some key points to consider regarding domicile: 

• Domicile is generally the location of a person’s permanent home unless and until they change their plans and make a permanent home elsewhere
• Domicile and nationality are often the same but this is not necessarily the case
• A person cannot have more than one domicile at a time but it is possible to have different domiciles at various stages in your life
• You cannot simply elect to change domicile by filling in a form. It depends on how a person lives their life and their future intentions
• Someone may retain their earlier domicile after moving to another country 

Think again about the example of a person taking a job in a new country. Their habitual residence might change 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 do. It depends on a wide range of factors worked out in decades of legal rulings.

These include: 

• Where is the person’s main home?
• Where do they work?
• Where are they entitled to vote?
• In what country or countries do they own property and on what basis?
• Where are their bank accounts located and for what reason?
• Where do they spend their time?
• In what country or countries do they pay personal taxes?
• If a person has moved away from their country of birth, what are their long-term plans?
• Where are their pensions located and where do they plan to retire?
• Where do they intend to be buried?

Finding the Best Jurisdiction

Although issues of language and administrative convenience are important, much more significant is the fact that the many countries of the world deal with the financial consequences of divorce and civil partnership dissolution very differently. 

If there may 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 in some countries 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 which adopts a more discretionary approach
• Some territories 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 country
• Provision for pension sharing is not uniform throughout the world
• Not all countries offer the guarantee of a fair trial

Complications Related to Divorce and Civil Partnership Dissolution Jurisdiction

The issue of jurisdiction can be complicated when you have a couple with connections with multiple countries. Each party could have a different habitual residence and it may not be clear what those habitual residences are at any given time if a person is internationally mobile. 

They could also each have different domiciles, which are, again, different from their respective habitual residences and nationalities. The number of countries potentially able to deal with their divorce can mount up quickly.

Jurisdiction Disputes

Parties to a divorce or civil partnership dissolution may end up vying with each other to establish jurisdiction in a country they believe will best preserve their own interests.

There is a pretty stark “first come, first served” rule in the case of EU jurisdiction races, which until recently included the UK. Now that the Brexit transition period has ended (with effect from 11pm on 31 December 2020), jurisdiction disputes between UK courts and the courts of other EU member states will be decided according to the forum conveniens or closest connection principle. This means that the courts will look at the whole picture to assess which country’s courts are most appropriately placed to deal with the proceedings, having regard to the parties’ connections with that country. 

The first come first served rule will continue to apply to UK cases that were commenced before the end of the transition period, even if the competing proceedings begin after 11pm on 31 December 2020.

Although getting the papers to court first may not as crucial post-Brexit, acting fast, and often acting first, can still be extremely important. This is likely to be more pronounced in cases involving disputes between remaining EU countries as their courts may well place emphasis upon being first in time, without it actually being a decisive factor.

In jurisdiction disputes involving England and Wales and non-EU member states, the forum conveniens principle will continue to apply as it always has done. 
Jurisdiction disputes can be lengthy, complex and expensive. Even seemingly harmless procedural steps can prejudice a party’s position. It is therefore important to take rapid, specialist advice in all relevant territories before proceeding

Jurisdiction in Proceedings to Dissolve a Civil Partnership or Same Sex Marriage

Under the relevant legislation, jurisdiction for the dissolution of a civil partnership is governed by regulations similar to those that exist for divorce in England and Wales. Not all countries recognise civil partnerships and/or same sex marriages. For this reason, it may be necessary to obtain a divorce or dissolution in the country in which the marriage or civil partnership was formed, even if there are no ongoing connections with that state. This might mean that a couple may have to obtain a divorce or dissolution in England and Wales, even though neither of the parties is habitually resident or domiciled here any longer.