When a relationship breaks down, one of the first issues to consider – particularly where there is an international element – is where the divorce should take place.
When can you divorce in England & Wales?
Jurisdiction in England and Wales is based primarily on the concepts of habitual residence and domicile.
You may be able to issue divorce proceedings here if one or more of the following applies:
- Both you and your spouse are habitually resident in England and Wales;
- Both of you were last habitually resident here, and one of you still lives here;
- Your spouse (the respondent) is habitually resident here;
- You (the applicant) are habitually resident here and have lived here for at least one year before issuing proceedings;
- You are both domiciled in England and Wales; or
- You are domiciled here and have lived here for at least six months before issuing.
Only one of these criteria needs to be satisfied.
What does “habitual residence” mean?
Habitual residence is a question of fact and reflects where your life is primarily based.
The court will consider factors such as:
- Where you live on a day-to-day basis;
- Where you work;
- Where your children (if any) go to school;
- Where your main social and family connections are.
- It is possible to have connections to more than one country, but to be habitually resident in England and Wales if this is where your life is centred.
What is “domicile”?
Domicile is a more technical concept and refers to your permanent or long-term home.
Everyone acquires a domicile at birth, but this can change if you move to another country and intend to remain there permanently or indefinitely. Domicile can be particularly important where one or both parties are living abroad but maintain strong ties to England and Wales.
Why jurisdiction matters
The question of where to divorce is important because different countries take very different approaches to financial matters.
The courts of England and Wales have a wide discretion when determining financial settlements, including:
- Division of assets;
- Spousal maintenance;
- Pension sharing; and
- Overall fairness between the parties.
In some cases, this can produce significantly different outcomes compared to other jurisdictions. As such, where more than one country may have jurisdiction, it is important to take advice before taking any formal steps.
International cases and timing
It is increasingly common for families to have connections to more than one country. Where this is the case, both parties may have the option of issuing proceedings in different jurisdictions.
Since the UK’s departure from the EU, the courts of England and Wales apply the principle of forum conveniens when jurisdiction is disputed. This means the court will decide which country is the most appropriate forum based on the parties’ connections.
Timing can still be important, but it is no longer simply a “race to issue.” The court will look more broadly at where the case should properly be heard.
What should you do?
If your circumstances involve more than one country, you should:
- Take legal advice at an early stage;
- Avoid issuing proceedings without understanding the implications;
- Consider where your spouse may issue proceedings; and
- Ensure you can evidence your residence and connections if required.
Addressing jurisdiction early can help avoid unnecessary disputes, delay and cost.
How we can help
At Nelsons Solicitors, we can advise you on whether you are able to issue divorce proceedings in England and Wales and, where there is a choice of jurisdiction, help you decide the most appropriate course of action.
Naomi Bond is a Senior Associate in our expert Family Law Team.
If you need advice on divorce jurisdiction, any divorce-related matter or have other family law-related queries, please contact Naomi or another member of the team in Derby, Nottingham, or Leicester on 0800 024 1976 or via our online form.
Naomi or the team will be happy to discuss your circumstances in more detail and give you more information about the services that our Family Law team can provide, along with details of our hourly rates and fixed fee services.
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