Understanding jurisdiction in international divorce cases

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.

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.

This is 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 right for me?

If you have a UK connection but live abroad, determining the right jurisdiction for your divorce can be complex. There are factors that may point to the foreign jurisdiction where you currently live, while others may suggest that the courts in England and Wales should handle your case.

Key elements such as your habitual residence and domicile play a major role in deciding which jurisdiction applies.

What is habitual residence and domicile in family law?

Habitual residence is where you primarily live and work and domicile is the country you consider your permanent home. For example, if you were born in the England but have lived abroad for several years, you may still be domiciled in the England while your habitual residence is in the foreign country.

These distinctions matter because the laws in different countries vary, and some jurisdictions may offer more favourable outcomes than others, particularly concerning the division of assets or child arrangements. Therefore, it’s important to assess all these factors carefully and seek professional legal advice to ensure that your divorce is processed in the jurisdiction that best aligns with your interests and circumstances.

A skilled international family law solicitor can help you weigh up the pros and cons of each jurisdiction and guide you through the process from the outset.

Requirements for divorce jurisdiction in England and Wales

• 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.

Why expert international divorce legal advice matters

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.

In fact, it’s wise to have an international family law solicitor on board from the point at which separation is on the cards.

Our international divorce lawyers can help you navigate the complexities of overseas divorce and ensure the best possible outcome for your future.