Despite the Brexit vote, the UK currently remains a member of the European Union (EU) and it is EU law, written into domestic law, which sets down grounds of jurisdiction for bringing divorce proceedings in England and Wales.
You can bring proceedings for divorce in England and Wales if:
- You and your spouse are habitually resident here (in simple terms, this means living here); or
- You and your spouse were last habitually resident here and one of you still resides here; or
- Your spouse is habitually resident here; or
- If you were to make a joint application, either of you are habitually resident here; or
- You have been habitually resident here for at least a year immediately before your application is made; or
- You have been habitually resident here for at least six months immediately before the application was made and are domiciled here (explained below); or
- You and your spouse are both domiciled here.
If none of the above grounds apply, then so long as no other EU member state has jurisdiction (under the above), an application may be made in England and Wales on the basis of the sole domicile of either you or your spouse. This is known as the ‘residual jurisdiction’. There are however restrictions on the financial relief available in the event of an application based on this final residual ground.
Meaning of domicile
Domicile is a legal concept. It is not the same as residence or nationality. Under English law no person can be without a domicile and can only have one domicile at any one time. Put simply, it is the county a person has as his or her permanent home, although in practice it is far more complex. A person does not stop having their home in a country just because they are temporarily resident elsewhere (e.g. for work or leisure) and even when a person decides to leave a country permanently they do not immediately stop having their home there until he or she acts according to that intention (e.g. by leaving).
As such, it is perfectly possible for a person to be habitually resident in one country but to retain domicile in another.
There are different types of domicile: ‘of origin’, ‘of choice’ or ‘of ‘dependence’.
Domicile of origin is acquired at birth, from your parents. If you were born in England and Wales, this is your domicile of origin.
Domicile of choice is when an individual has chosen a new domicile in place of that which he or she has held before.
Domicile of dependence determines when a child is able to obtain a domicile independent from that of his or her parents. Capacity to acquire a domicile of choice arises at the age of 16. Until capacity is acquired, a person’s domicile is dependent on that of their parents. So if your parents change their domicile by choice after you are born but before you are 16 your domicile shall follow that of your parents.
It is up to the person claiming that their domicile has changed to prove it. It is more difficult to prove that a domicile of origin has been changed than to prove that a domicile of dependence or a domicile of choice has changed.
Every adult can change their domicile by choice if they intend to permanently live in another country. The key is permanency; not fixed for a limited time or for a limited purpose.
Certain factors which have been considered as supportive of a change of domicile include the following:
- How long you live in the new country;
- Getting married to a national of the new country;
- If the bulk of your property and investments are held in the new country;
- If you vote in the new country;
- Becoming a citizen of the new country;
- Having children in the new country;
- If your children are educated in the new country.
Declaring that you are domiciled in a new country, such as in a Will, will not be determinative of the issue, although this will go towards proving that you intend to permanently reside in the new country.
Divorce and separation - the options
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How does all this impact on financial claims within divorce?
In addition to divorce proceedings is the resolution of financial matters. England and Wales has long been regarded as the divorce capital of the world and has been viewed as the most generous, particularly to wives. In England and Wales it is not possible to start financial proceedings until jurisdiction for divorce has been established. Although, in certain limited circumstances, if you have been divorced overseas and have a connection with England and Wales (e.g. you own property or other assets here) you may be able to claim financial relief in England and Wales if you have suffered financial hardship by reason of your foreign divorce.
There is often more than one county in which divorce proceedings can be made. Under EU law, when proceedings are brought in two different EU countries the country of the person whose divorce petition was processed first has jurisdiction. As such, International family lawyers have to be alert and quick to obtain instructions from their client’s as there could be a race to court in order to secure jurisdiction in the country which might provide the best outcome for their clients.
There are different rules for establishing jurisdiction between England and another competing country outside of the UK and EU. The court in England and Wales may temporarily suspend proceedings where it appears that it is more convenient and appropriate for the proceedings to take place in the other jurisdiction first.
The courts of England and Wales have the ability to make a variety of financial orders on divorce, including property adjustment orders, maintenance, lump sum orders and pension sharing orders.
EU legislation sets out the basis on which EU member states have jurisdiction to determine matters relating to maintenance.
Any divorce petition issued after 18 June 2011 on the basis of the sole domicile of one spouse under the residual jurisdiction prevents a court in England or Wales from being able to hear a claim for maintenance.
Let’s see how it works in practice
Case Study Example
Frieda, a German national, moves to England to study. In England, Frieda meets Dave, an English national. The parties’ marry in England, jointly purchase a property and have two children. When the youngest child is six years old the family temporarily relocate to Singapore with the intention of staying for a fixed period of two years for Dave’s job. The parties’ rent out their family home in London. The parties’ do not have permanent leave to remain in Singapore, Dave has an employment pass and Frieda and the children are listed as dependants. The family rent an apartment in Singapore which is paid for by Dave’s employer.
The parties remain living in Singapore for a period of eight years, during which their relationship breaks down and the parties’ separate. The children remain living with Frieda. Although Frieda intends to return to England to live with the children, she does not wish to do so until the youngest child completes his secondary education in two years time. Frieda wishes to bring divorce and financial proceedings in England now.
Frieda and Dave are habitually resident in Singapore. Under English law, Frieda’s domicile of origin is Germany. In order to bring divorce proceedings in England and Wales she would need to show that her domicile has changed by choice to England. The fact she married an English national, has children with dual English and German nationality and continues to own property in England will be relevant when considering Frieda’s intention to make England her permanent home.
Given the fact that Frieda moved to Singapore for a fixed period and for a fixed purpose, she does not have permanent leave to remain (although this on its own is not determinative), and she intends to return to England, it is unlikely that Frieda’s domicile would be seen to have changed by choice to Singapore.
Dave was born in England and as a British citizen his domicile of origin is England and Wales. Although Dave lives and works in Singapore his status there remains as a temporary resident. He owns no property there.
Frieda could claim that jurisdiction to petition for divorce in England and Wales exists on the basis of the domicile of both parties; Frieda’s domicile of choice and Dave’s domicile of origin. This is however open to challenge by Dave. If Frieda cannot prove that she has changed her domicile to England and Wales but Dave has retained his English domicile, it is possible that she will be able to petition on the basis of Dave’s sole domicile under the residual jurisdiction. The residual jurisdiction provision only applies if no other EU state has jurisdiction. If Frieda was found not to have acquired English domicile by choice, she would retain her German domicile of origin. German law will mirror the same jurisdiction grounds; Frieda will only be able to bring proceedings in Germany after six months habitual residence there.
As you can see domicile and jurisdiction can be very complex and is a specialist area of the law. It is extremely important to get advice early on if any of these issues affect you or your spouse.
Please do not hesitate to get in touch with us if you would like to discuss your own specific circumstances.