Can I still petition for divorce in England?

Jul 12, 2018

It has been estimated in reports from the United Nations that approximately 1.3 million people from the UK have moved to live in other countries within the EU.  Of this group, over 300,000 Brits choose to move to Spain, with France and Ireland also over the 100,000 mark respectively.  This figure therefore means that UK citizens make up the fifth largest expat population globally.

1. First come first served 
There are cases where there is more than one country in which a divorce and financial proceedings can be heard and in those cases, there is often a race to issue divorce proceedings.  It is usually the proceedings which are started first which take priority and therefore it is vital to take expert legal advice as soon as possible if you think this may be an issue.  Deciding on the relevant jurisdiction to issue proceedings can have significant ramifications which is why expert legal advice should be sought as soon as possible.

2. Which court has jurisdiction?
For British Citizens who have married and moved abroad, it is not always clear which country’s jurisdiction is relevant.  It is not necessarily the case that because someone is a British Citizen that they must abide by the laws of England and Wales when it comes to a divorce and matrimonial matters.  As between EU countries, the European Regulation referred to as “Brussels II revised” (Brussels IIR) determines which country should have jurisdiction.  If a person wishes to commence divorce proceedings in England and Wales, the courts have jurisdiction in relation to those proceedings provided the divorce proceedings have not been commenced properly in another EU member state and provided one of the following situations applies: 

  • Both spouses are habitually resident in England and Wales; or
  • Both spouses were last habitually resident in England and Wales and one spouse still resides there; or
  • The respondent is habitually resident in England and Wales;
  • The petitioner is habitually resident in England and Wales and has lived there for at least one year immediately before the petition is filed; or
  • The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is issued; or
  • Both parties are domiciled in England and Wales.

If no other EU country has jurisdiction then all of the above grounds for jurisdiction will apply but the petitioner can also start divorce proceedings in England and Wales if either the respondent or the petitioner are domiciled in England and Wales when the proceedings commence.

In addition, the provisions will only apply if the parties have been married for a period of at least one year which is the case for all divorce proceedings in England and Wales.

3. Habitually Resident

Brussels II revised does not provide a definition for “habitual residence” however in the case of Marinos v Marinos [2007] EWHC 2047 [FAM], Munby J defined habitual residence as:

“The place where the person has established, on a fixed basis, his permanent or habitual centre of interest, with all the relevant facts being taken into account for the purpose of determining such residence”. 

A person cannot be habitually resident in two countries at the same time.  Determination of habitual residence requires an evaluation of all the factors linking an individual with a place so that as well as the time spent in a country, possible other considerations include the location of the family home, language, where employment or training is based, schooling for children of the family, where you pay your taxes, where your pension and banking arrangements are located, postal address, residence status, medical and dental arrangement, hobbies and place of worship.

In the Marinos case the court weighed up different facts such as on the one hand Mrs Marinos’ centre of employment and education interests were in England which was also the land of her birth and where she retained an emotional commitment which she never had to Greece, however, the centre of her emotional, personal and family interests were in Greece, the country where her children lived.  The court found that Mrs Marinos was habitually resident in England throughout. 

4. Domicile
Domicile is a unique concept to the UK and Brussels II revised provides that for the purpose of the regulation, domicile shall have the same meaning as it has under the legal systems of the UK and Ireland.  In relation to jurisdiction for divorce proceedings, domicile is relevant when neither spouse meets the habitual resident requirements.  Domicile can be hard to establish where a person has many links to different countries and where a person considers themselves to be ‘from’.  The term “domiciled” can be categorised into three sub categories:

Domicile of origin
This prevails in the absence of a domicile of choice which means if a domicile of choice has not been acquired or if it has been abandoned. A domicile of origin is acquired when a person is born and it is the country in which the spouses’ parents were domiciled at the time of the person’s birth.  If a person’s parents were married when he was born, it is the father’s domicile however if the child’s parents were unmarried or his married father died before his birth, it is the mother’s domicile.

Domicile of choice
Any person over 16 can make a choice over their domicile if they are a resident in that country (and that country is not their domicile of origin) and they have intention to remain in the country permanently or indefinitely.

Domicile of dependence
Because unmarried children under the age of 16 cannot acquire a domicile of choice, they instead acquire a domicile of dependence. The domicile of dependence will be in line with their father’s domicile if the person’s parents are married or the mother’s domicile if the parents are unmarried or the married father has died.  If the person’s parents have separated, the child’s domicile will align with the parent that they live with.  If a person with married parents share his time between the homes of the birth parents, he retains the domicile of his father.

If the question of domicile is disputed then the court will need to decide where the person is domiciled.  In addition, if a person claims that they have changed their domicile then they need to prove this and that is difficult to do.  The relevant factors include a person’s tax links, their ties to the country and whether their family are there, how often the person goes to the country of domicile and the person’s long term intentions.

5. What happens where the courts of England and Wales have jurisdiction and so does another country?
As explained above, the court which first receives the divorce proceedings will have the jurisdiction to deal with the divorce provided the requisite steps have been taken.  The second court in time is required to stay the proceedings until the jurisdiction of the first court is determined.  The timing of issuing papers at court is therefore important and time is of the essence. 

Further information on cross-jurisdictional divorce will form part of future additions of the Herrington Carmichael ex pat series, however, in the interim should you have any questions please do not hesitate to contact a member of our family department.

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