Jurisdiction in English and Welsh divorce

7th March 2015 by

 

In most cases where a British couple want to get divorced there will be no difficulty in applying to an English or Welsh court to commence the proceedings. However, if either of the parties to the marriage are not British citizens or have homes and connections abroad it is usually wise to seek the advice of an experienced divorce solicitor in order to establish the correct jurisdiction for the divorce.

Usually all that is needed to establish England and Wales as the correct jurisdiction for divorce is proof that one or both parties to the marriage are habitually resident there. If this cannot be proven it may be possible to commence divorce proceedings on the basis of one of the parties being domiciled in England or Wales.

Habitual residence for the purpose of divorce

A divorce solicitor will be best placed to advise on a spouse’s claim to habitual residence in England or Wales, but basic guidelines are as follows:

  • Habitual residence can be defined as where the parties live on a day-to-day basis and having spent enough continuous time there to be deemed settled;
  • If one or other party has been settled in England or Wales for the year immediately prior to the filing of the divorce petition for business, education, health, family reasons or personal choice, it is usually fairly easy to establish habitual residence on either a six or a twelve month basis;
  • Where short absences have been made, such as business trips, or if holidays been taken outside England and Wales, this will not usually affect the proving of habitual residence;
  • In some cases even longer absences may not necessarily mean a party to a divorce cannot claim habitual residence;
  • Where a party has another home outside of England and Wales, or if he or she intends to live there at a later date, this will not affect grounds as a habitual resident;
  • If a party is residing in the country illegally this may not necessarily preclude them from claiming habitual residence in a divorce.

If a party to the divorce cannot claim jurisdiction as a habitual resident the action may still be able to proceed if one or both spouses are domiciled in England or Wales when the proceedings commence.

What is ‘domicile’ in divorce?

Domicile is a legal concept devised to facilitate the linking of an individual with a particular legal system. It is not established based on nationality and is not determined solely by residence.

The relevance of international law is important in ascertaining a person’s domicile and therefore the advice of an experienced divorce solicitor is vital if this is to be the determining factor in the establishment of jurisdiction for a UK divorce.

Key points in establishing domicile

  • An individual’s domicile must be a place with a single legal system, so it is not possible to be domiciled in Great Britain – the domicile would be either Scotland, Northern Ireland or England and Wales;
  • All individuals have a domicile;
  • It is only possible to be domiciled in one place at any given time;
  • An individual’s domicile can change as their circumstances alter.

Domicile is categorised as domicile of origin, domicile of dependence or domicile of choice and the application of each category within English and Welsh family law is a complex issue.

Healys divorce solicitors in London and Brighton

Healys’ team of divorce solicitors based in London and Brighton has learned through its many years of experience that each individual divorce is unique. We believe that by listening sensitively to our clients we can offer them the best family law legal advice regarding determination of jurisdiction to achieve the most successful divorce.

The team is dedicated to giving strong, client-focused representation throughout all stages of separation, divorce and children disputes.

If you wish to discuss any aspect of your divorce case with the family law lawyers at Healys please call direct to Catherine Taylor on 01273 669 12 or e-mail on catherine.taylor@healys.com