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Establishing Jurisdiction in an International Divorce

Every country has its own divorce laws and the approach towards capital payments, maintenance, pensions and nuptial agreements can vary significantly from country to country. Where there is an international element to a marriage, for Read more...

Lucy Cadley

Trainee Solicitor

  • Divorces
  • Family matters

Every country has its own divorce laws and the approach towards capital payments, maintenance, pensions and nuptial agreements can vary significantly from country to country.

Where there is an international element to a marriage, for example, multiple nationalities, residences or differing domiciles, the divorce petitioner may have the choice as to which country they commence divorce proceedings in and this choice can have a substantial impact on the proceedings, as well as any financial settlements and child arrangements reached.

It is not a requirement to divorce in the country in which you were married or – if you are a British expatriate – to divorce in the country in which you are currently living. However, to commence divorce proceedings in England and Wales, you must establish that you have the jurisdiction to do so.

Qualifying Circumstances for Jurisdiction in England and Wales

The end of the Brexit transition period saw a complete upheaval to all the rules on jurisdiction for divorce. From 1 January 2021, the courts of England and Wales have had jurisdiction for divorce proceedings in the following circumstances:

  1. Both parties to the marriage are habitually resident in England and Wales;
  2. Both parties to the marriage were last habitually resident in England and Wales and one party continues to reside there;
  3. The respondent is habitually resident in England and Wales;
  4. The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  5. The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  6. Both parties to the marriage are domiciled in England and Wales; or
  7. Either of the parties to the marriage is domiciled in England and Wales.

‘Habitual resident’ and ‘domicile’ are legal concepts which are important in considering the correct jurisdiction to process a divorce.

Habitual Residence

A person’s habitual residence is, broadly speaking, where they are mainly based. It is defined as where a person has established, on a fixed basis, his or her permanent or habitual centre of interest.

A person can only have one habitual residence at a time, but a new habitual residence can be established quickly. For example, if a person moves to a new country with the intention to remain and transfer his or her life there, they may acquire habitual residence of the new country immediately upon arrival.

Domicile

A person’s domicile is, broadly speaking, the country that they would consider having the closest ties to. This can range from nationality, citizenship or residence.

Everyone has a domicile of origin, which automatically follows their father’s domicile if their parents were married at the time of birth, or automatically follows the mother’s domicile if their parents were unmarried at the time of birth.

Domicile of origin is difficult to relinquish and remains until it has been established that a new domicile has been acquired. Domicile of choice is where a person resides in a different country to their domicile of origin and they have an intention to make the new country their home permanently or indefinitely.

Children under the age of 16 will have a domicile of dependence. This will mirror the father’s domicile if the parents are married, or the mother’s domicile if the parents are unmarried. When establishing a person’s habitual residence and domicile, the court will look at a range of factors including the location of a person’s job, property, bank accounts, mailing address and registered doctors.

In summary, where there is an international element to a marriage, there may be a choice as to which country the petitioner commences divorce proceedings. This choice can have a significant impact on the outcome of the divorce, financial and child proceedings.

If you are in doubt, speak to an experienced international divorce lawyer who can help you to establish the most appropriate jurisdiction for your divorce.

If you would like to discuss any of the topics raised in the above article, please call us on +44 (0)20 7936 8888, email on enquiries@lawstep.co.uk or contact a member of the team below.