Jurisdiction And Applicable Law In Divorce: How To Secure, How To Defend

Although England and Wales has a discretionary financial system on divorce giving Judges power to consider what is fair, issues of jurisdiction are binary - a win/lose outcome: you either have it or you don't. It sounds simple, but if there is a dispute about it, securing jurisdiction can be a complex, lengthy and expensive process.

Who can file in England

To file a divorce petition in England, an applicant has to show either:

that at least one of the criteria in Article 3 of the Council Regulation (EC) No 2201/2003 known as 'Brussels II bis' applies (set out below); or that no other EU member state has jurisdiction, and one of the parties is domiciled in England & Wales. Brussels II bis currently applies to all member states (except Denmark), and for the purposes of the regulation, England & Wales, Scotland, Northern Ireland and Jersey are considered as separate, but related jurisdictions.

Habitual residence and domicile

Habitual residence turns on where someone's 'centre of interests' is, taking into account all relevant circumstances linking you to a place, both subjective and objective. You cannot be habitually resident in two countries at the same time and it is not just a question of how long you have been there.

Confusingly, the term 'domicile' in civil jurisdictions means habitual residence, but in England and Wales, domicile relates to where someone considers their home to be even if they may reside elsewhere. An individual takes his or her father's domicile as a domicile of origin at birth (or the mother's, if the parents are separated) and never loses that domicile of origin, though it can be replaced by a domicile of choice when he/she decides to live in a place permanently (and is physically present there).

Competing jurisdictions

There are two main types of jurisdiction competition in divorce proceedings: the first is between two EU Member States, and it is a race. The first person to file (provided they then take the steps necessary to serve) wins.

The second scenario, when the other country is not an EU Member State, is about which of the two is the more appropriate jurisdiction in all the circumstances of the case in question, known as 'forum conveniens'.

1. Race within the EU - first in time

   1. How to secure

      One cannot over stress the importance of being first in time. Minutes and seconds can make a huge financial difference if they mean a divorce taking place in one jurisdiction as opposed to another.

   2. How to defend

      In an...