Jurisdiction – what it is and why it matters - Family Law Partners

Jurisdiction – what it is and why it matters

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The dictionary definition of jurisdiction is “the official power to make legal decisions and judgements” so when lawyers talk about jurisdiction, what they generally mean is whether the court has the power to make legal decisions in your case.

Each country has its own laws and legal system. Many clients are surprised to learn that the United Kingdom in fact has three separate legal systems:

          i. England and Wales;

          ii. Scotland; and

          iii. Northern Ireland.

While the laws throughout the UK in relation to family matters are similar, there are some differences (most notably around the rights of unmarried cohabitants, where Scottish and English law is very different). Once you start bringing other countries into the mix, those differences get even wider. That is why it is really important that when you seek the advice of a solicitor, you speak to someone who practices and can advise you on the law in the right jurisdiction.

In respect of family matters, jurisdiction might affect you in a few different ways.

  1. Divorce proceedings

Arguments about jurisdiction most commonly arise in relation to divorce proceedings. This is because where your divorce is based is also likely to be where your financial matters will be dealt with. England is considered as a favorable jurisdiction for parties to a marriage who are in a financially weaker position, because under English law there is provision for assets to be shared, needs to be met and for the payment of maintenance. This has historically led to England being known as a divorce tourism hot spot. This practice, formally known as ‘forum shopping’, is the process by which one spouse issues divorce proceedings in a country based on the belief that it will be financially beneficial to them (instead of, for example, simply issuing proceedings in the jurisdiction where they had been living as a family prior to the breakdown of the marriage).

In order to make an application for a divorce in England and Wales, you must demonstrate that the courts of England and Wales have jurisdiction to deal with your divorce proceedings. There are two factors that determine jurisdiction:

          i. Habitual residence; and

          ii. Domicile.

Habitual residence is the place where your life is mainly based. You might own a property there, work there, have family there, your children go to school there and your main family life takes place there. As habitual residence is based on where you are settled and is a question of fact, it is often quite easy to work out where you are habitually resident.

Domicile is a more difficult concept, and it might be that you have a domicile of origin that is different to your domicile of choice. If, for example, you were born in a jurisdiction outside of England and Wales, that jurisdiction would be your domicile of origin. But if you had subsequently moved, and no longer considered where you were born to be your permanent home, then you may have acquired a new domicile. Your domicile might also be different to where you are habitually resident. Domicile is a legal concept and is very fact specific, it is therefore often not very straightforward to work out when there are questions around it.

It is likely that if you were born in England or Wales and still live in either of those countries, then you’ll be both habitually resident and domiciled there.

When you apply for a divorce in England and Wales, the application form specifically asks you why the courts of England and Wales can deal with your case, and sets out a variety of different circumstances that might apply:

  1. both parties to the marriage are habitually resident in England and Wales;
  2. both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
  3. the respondent is habitually resident in England and Wales;
  4. in a joint application for divorce or judicial separation only, either of the parties to the marriage is habitually resident in England and Wales (this only applies to proceedings issued on or after 6 April 2022);
  5. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
  6. the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
  7. both parties to the marriage are domiciled in England and Wales; or
  8. either of the parties to the marriage is domiciled in England and Wales.

As referred to above, this is important because you can only make an application for a financial remedy in England and Wales (and potentially take advantage of those more generous provisions) if the courts of England and Wales have jurisdiction to deal with your divorce. If they do not, then they cannot deal with your finances*.

*Note that it is possible for a party to bring a claim for financial relief in England and Wales after an overseas divorce where no or inadequate financial provision has been made under Part III of the Matrimonial and Family Proceedings Act 1984. These are complex and highly fact specific cases and are beyond the scope of this blog.

  1. Nuptial agreements

Another area where jurisdiction may be a factor is when you and your spouse, or soon to be spouse, wish to enter into a nuptial agreement.

A nuptial agreement sets out how you would deal with your finances in the event of the breakdown of your marriage. You can find out more about nuptial agreements in my colleague Lisa’s blog here: https://www.familylawpartners.co.uk/blog/everything-you-need-to-know-and-more-about-pre-nuptial-and-post-nuptial-agreements-part-1

Nuptial agreements will be drafted to address the laws of the country where the parties to that agreement are living. In England, nuptial agreements are not binding on the court and so when drafted, we need to ensure that they meet certain criteria to give them as much chance as possible of being upheld. That is not the case in every country and in some places, certain states in the USA for example, nuptial agreements are binding. As the laws relating to divorce and finances vary from country to country, that means that your nuptial agreement has to accord with the jurisdiction that is most likely to apply should you get divorced. For example, if you live in South Africa and that is where your family life has been based, having an English agreement is not necessarily going to be appropriate because your agreement needs to instead comply with the laws of South Africa.

Where there is an international aspect to a marriage, for example if you own homes in more than one country or are of different nationalities you may need advice from lawyers in the different jurisdictions and for an agreement to be drawn up in one country and then reflected in another country by entering into a mirror agreement in the other country. The country where the divorce proceedings would take place should be considered and confirmed within the agreement (i.e. it should contain a clause that says where you will apply for divorce).

If you live in England and Wales and are simply having the wedding ceremony in another country, then it is very likely that having an English nuptial agreement will be appropriate in your circumstances. If you are simply having a wedding ceremony in England but your life is based in another country, and you have no intentions of living in England, then you should see a lawyer in the country where you do live and have a nuptial agreement drawn up there.

  1. Child maintenance

Lawyers in England and Wales also often talk about the court having jurisdiction to deal with child periodical payments, or child maintenance. Confusingly, by this we are not referring specifically to where you live. Instead, because child maintenance is dealt with by the Child Maintenance Service (CMS), who operate under a statutory scheme, the courts have a limited ability to make decisions about what should be paid (i.e. it is the CMS who have the jurisdiction, or power, to make the legal decisions and not the court in most cases).

If the court has made an order about child periodical payments (which it has the jurisdiction to do in England and Wales within the terms of a divorce financial settlement if the parties agree) and that order is less than 12 months old, then you cannot make an application to the CMS for an assessment. However once that order is more than 12 months old, either party to the order can make an application to the CMS for an assessment which may mean that the amount stated in the court order for child periodical payments goes up or down. If different, it will be the CMS assessment that is applicable (and not those particular provisions of the court order).

That means that if parents do come to an agreement about child maintenance which is documented in a financial order, that order will only be binding on them for 12 months. After that time if either parent wants to change the amount, it is the CMS that has jurisdiction to deal with this.

The court also retains jurisdiction to make child maintenance orders in other circumstances, for example in ‘top-up’ cases, where the paying parents gross income exceeds the CMS cap of £156,000 per year and/or for school fees orders. You can read more about these issues here: https://www.familylawpartners.co.uk/blog/top-up-orders-for-child-maintenance  and https://www.familylawpartners.co.uk/blog/school-fees-and-divorce.

Jurisdiction is a technical concept and it can have a big impact on parties to divorce proceedings. Therefore, if you think jurisdiction may be an issue in your case, you should seek early legal advice to ensure that a divorce application is issued in the appropriate jurisdiction.

Hannah Gumbrill-Ward is a family law specialist based in our Brighton team. She can be contacted for a confidential discussion about any family law issue.

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