Family law varies from country to country. Courts in each country (or, as in England and Wales, group of countries) have their own jurisdiction. This means their remit to deal with cases. And when it comes to divorce and other family issues that have an international element, there are various factors that need to be worked through to determine which jurisdiction applies. Once you’ve established that, you can get things started by issuing your divorce petition.
Why is it important to start a divorce in the right place?
The main reason is that if you try to issue divorce proceedings in a court that doesn’t have jurisdiction to deal with it, you’ll be wasting time and money.
Another reason is that you may be in the position of being able to choose the more favourable of more than one jurisdiction. Divorce laws in England and Wales are often considered to be preferable to those in some other countries, mainly because of the priority given to the needs of children, and that our courts start with the presumption that assets should be divided equally between the parties. That is not the case in all parts of the world.
How do I know which jurisdiction is the one for me?
Where a person with a UK connection lives abroad, there may be factors that suggest that that foreign jurisdiction is appropriate and others that point to England and Wales (or Scotland or Northern Ireland).
Key to jurisdiction is the idea of ‘habitual residence’ and of being ‘domiciled’. Habitual residency means the place you’re most closely tied to on a day-to-day basis. It’s where you spend most of your time – where your job is, for example. The place where you are domiciled is essentially the place you call home. Imagine you live in Sydney, but were born and grew up in London – Australia might be your habitual residence, and England is your domicile. Or, if you have lived in London all your life, England could be both where you are domiciled and habitually resident. It all depends on your circumstances. And, while the distinction between the two can sometimes be subtle- and difficult to get complete clarity on – it is hugely important to the decision about jurisdiction.
To have your divorce dealt with by the courts of England and Wales, one of the following must apply:
- Both you and your husband/wife are habitually resident in England and Wales;
- Both you and your husband/wife were last habitually resident in England and Wales and one of you continues to reside there;
- Your husband/wife (‘the respondent’) is habitually resident in England and Wales;
- You (‘the applicant’) are habitually resident in England and Wales and have resided there for at least one year immediately before making the application;
- You are domiciled and habitually resident in England and Wales and have resided there for at least six months immediately before making the application;
- Both you and your husband/wife are domiciled in England and Wales; or
- You are, or your husband/wife is, domiciled in England and Wales.
To make matters a little more complicated, it’s quite possible for courts in more than one country to each have jurisdiction. If this applies in your situation, you may then be able to choose where to issue your petition. It’s therefore really important to understand the pros and cons of each – something that lawyers like us will be able to help with.
In fact, it’s wise to have an international family law solicitor on board from the point at which separation is on the cards. Divorce is a challenging process even without the foreign element, and expert support throughout will make sure you make the best decisions and achieve the best possible outcome.