Gemma Garrett

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:

  1. You and your spouse are habitually resident here (in simple terms, this means living here); or
  2. You and your spouse were last habitually resident here and one of you still resides here; or
  3. Your spouse is habitually resident here; or
  4. If you were to make a joint application, either of you are habitually resident here; or
  5. You have been habitually resident here for at least a year immediately before your application is made; or
  6. You have been habitually resident here for at least six months immediately before the application was made and are domiciled here (explained below); or
  7. 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. 

Application

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.

20 responses to “Can I bring divorce proceedings in England and Wales if I don’t currently live here? Jurisdiction explained.

  1. Hello Dear
    Can I bring a divorce proceeding in the UK, even when there is an ongoing or similar divorce proceeding currently going on abroad (outside of the UK) that is not yet concluded.

    1. Thank you for your comment. If divorce proceedings are already underway in another country then it will not be possible for you to bring divorce proceedings in England or Wales. Depending on your circumstances, you may be able to claim financial relief in England and Wales if you have a connection to the country e.g. you own property or other assets here, and if you have suffered financial hardship because of your foreign divorce. I suggest you obtain further legal advice from a specialist family solicitor; the Resolution website will assist you in finding a solicitor near to you.

  2. Hi,
    I’m not sure which option to choose with regards to jurisdiction. I am a Polish national, my husband is an English national. We got married in Poland. I have been living here for the last 10 years and a few weeks ago acquired British citizenship. Am I domicile? Or should I put that we are both habitually residing?

    1. Thanks Magda for your comment. The courts of England and Wales would have jurisdiction in matters relating to divorce as you are both habitually resident in England. The Polish courts would only have jurisdiction after 6 months following your return to live in Poland.

  3. I’m German and had lived in separation in London for 15 years. My german wife live in germany alone. I go there once a year for visit. My wife is mentally ill now. Can I seek for divorce. Please help

    1. Thank you for your comment. You will be able to petition for divorce against your wife in England and Wales on the basis that you have been habitually resident here for over 12 months. Alternatively, you would be able to petition in Germany on the basis that your wife is habitually resident there and/or you were both last living together as spouses in Germany and your wife still resides there. Before you decide which jurisdiction to bring divorce proceedings, I recommend that you obtain legal advice from a specialist family lawyer in both jurisdictions as the financial consequences of divorce are very different in both countries.

  4. I am a UK BRITISH
    CITZEN. I moved to Zurich in 2003 and I married a Swiss man in Switzerland and have lived here since . I have 3 children. My closest relative is also British and lives in Uk. I want to divorce and go back to live in Uk with my relative . Also I want to have divorce procedures in UK ;
    and bring my children with me. How do I change my domicile here if I can only afford to live with my relative ? Is it legal to bring my children to Uk if they have Swiss nationality? Do I need a written consent of my husband for that? Please help me.

    1. Thank you for your question. Domicile is a complex concept. It primarily takes into account where you were born, but it can be possible to change domicile later, based on where you are living and where you may possibly be living in the future. You will have read from our blog those factors which the Court considers to be supportive of a change of domicile. Bear in mind that you do not necessarily have to change your domicile in order to bring divorce proceedings in England & Wales. For example, if you have been habitually resident here for at least a year then you will be able to bring divorce proceedings. In terms of your ability to bring your children to England, since the children are habitually resident in Switzerland, the law in Switzerland will apply. International children law is a very complex area of law and as such you will need to seek legal advice from a lawyer in Switzerland who specialises in International Children Law. You should be aware that both Switzerland and England are parties to the 1980 Hague Convention on Child Abduction. This treaty operates to secure the swift return of children back to their home country in circumstances where they have been wrongfully removed by one parent in breach of the other parents ‘Rights of Custody’. What is meant by ‘Rights of Custody’ varies from country to country and you will need to seek advice from a Swiss lawyer about the definition under Swiss law. However, you should be aware that if you were to bring the children to England without your spouse’s consent then he may well be able to bring an application under the Hague Convention for the children’s immediate return. This might well hamper your future chances of bringing the children to England lawfully.

  5. Hello, I am british living for 15 years in Switzerland. I am married to a Swiss man and have 3 kids. I recently discovered that my husband is guy and has been deceiving me for 18 years. Unfortunately I signed a pre nuptial contract which I did not understand in german saying that I have no rights to anything in a case of divorce. Could I start divorcing procedure in the UK? My husbands assets are all here apart from some investments in a UK bank where he works.

    1. Thank you for your question. Whether or not you can get divorced in England & Wales if you or your spouse are currently living abroad is a complex area of family law and depends on several factors, as you will have read from our blog.
      In terms of the enforceability of a prenuptial contract, prenuptial agreements are not formally binding in England and Wales. (This blog provides you with some further information). However, they have been regarded by the court as persuasive and even ‘decisive’ and the majority are now recognised in divorce proceedings provided certain precautionary steps were taken when the agreement was drawn up and signed. The Supreme Court has set out the following three factors that increase the likelihood of a prenuptial agreement binding the parties:
      1. The agreement must be freely entered into;
      2. The parties must have full appreciation of the implications of the agreement; and
      3. It must not be unfair to hold the parties to the agreement in the circumstances prevailing at the time of the divorce.
      If you did not understand the terms of the prenuptial agreement because it was written in a language that you did not understand and the terms were not properly explained to you by an independent legal advisor, and therefore you did not have full appreciation of the terms of the agreement, then you may be able to challenge it.
      We recommend that you contact a Resolution specialist solicitor at the earliest opportunity to discuss your specific case. Please do contact us if you require any assistance.

  6. I married my wife five years ago in Italy. we are both Italian but we
    met in London seven years ago when were were both working here for an Italian
    bank I have lived in London for 10 years. I was recruited from Italy to a job in
    the London branch of Banco di Puglia. I also have property here in London. I met my wife as soon as she arrived in London to work for my bank.
    our marriage broke down and my wife left and never came back. She later contacted me to say she was going back to Italy and that she has found a job there. She has no intention of coming back to England and wants the divorce in italy. I have made a life
    for myself in London and intend to remain here permanently as I have no ties
    in Italy since my parents died.

    Could you please let me know whether I have a choice to issue proceedings in England or Italy?
    What further steps or information I need to know to whether it is in my best interests to issue the divorce proceedings in England and Wales or in Italy?

    1. Thank you for your comment. Based upon the information you have provided it would appear likely that you would be able to issue divorce proceedings in England if you wished to do so. I am afraid I cannot advise you as to whether you would be able to issue divorce proceedings in Italy as you would need to take advice from an Italian lawyer regarding this. However, in the event that your Wife were to issue divorce proceedings in Italy first then it is likely that the Italian courts would have jurisdiction to deal with the divorce and the English courts would not then deal with your divorce.

      I am afraid I cannot advise you as to whether it is in your best interests to issue the divorce proceedings in England or in Italy as I cannot advise you upon the likely outcome if you were to proceed with your divorce in Italy. I would suggest that you may want to obtain advice from a lawyer in each country but should do so quickly as you may otherwise find that your Wife has already issued divorce proceedings.

  7. Can you please help me.

    I was in a civil partnership 12 years ago, and I am trying to dissolve it. the other party is no help in the matter although she lives in the UK and I don’t anymore, I’m in Ireland. I am trying to order my civil partnership certificate as I don’t have it anymore, but I do not have the address we stayed at 12 years ago, would this need to be on it for the court? I have no idea how else to go about this without the address.

    Also, it’s been over 5 years and even though she won’t help at all she is happy to sign anything sent to her, so will it be a straight forward process of just sending forms, or any proof somehow we don’t live together? I havent lived in the UK for 10 years now so it’s been over for 10 years. Can I send the forms to her in the UK and go through the UK law where she lives even though I’m in Ireland.

    1. Dear Angie, thanks for your comment. Jurisdiction is a complex area of law and would depend on various factors, in particular which part of the UK your civil partner currently resides in and which part you resided in when you lived together. I recommend that you seek legal advice in this regard from a Resolution lawyer. Please let me know if we can assist you.

      You can order a copy of your civil partnership certificate using this link.

  8. Hello,
    I have a friend who is British married for a Polish woman. The marriage took place in Poland. They are separated for 5 years now and she is living back in Poland since 2014. They have 8 years old daughter who lives in Poland with her mother. They sold the property they’ve owed together when they separated. He is visiting Poland often to see his daughter or her mother brings her in UK sometimes. He wants apply for a divorce as they’ve been separated for almost 5 years. Can he divorce in UK by filling up the D8 form and what are the chances if his wife doesn’t want to divorce him?

    1. Thank you for your comment. You say that your friend is British and I will presume that your friend lives in England and Wales. If so, the courts here have jurisdiction. Your friend may find this factsheet on the divorce procedure useful. Your friend should also consider seeking specialist legal advice

  9. An updated question please, I have our civil partnership certificate now. Civil partnership was in UK(London), She still lives there although is using an address in Liverpool, I am in Ireland. 10 years out of the UK. Can I proceed and file through the UK courts in Liverpool (based on her address I have to use)? I just want to know does the UK have jurisdiction on this or does she have to be the petitioner as she’s the one living in the UK? She’s been there all along. We both lived in London together.

    1. Thanks for your comment Angie. As your civil partner still lives in the England it is likely that either of you could issue a divorce petition in the jurisdiction of England and Wales. As you live in Ireland, it also likely that you could issue divorce proceedings there. However, the law around jurisdiction is complex and I strongly advise you to seek legal advice before taking any action. As well as considering which jurisdiction you can issue divorce proceedings in, you should also give consideration to which jurisdiction would be most favourable to you.

  10. Hi,
    I live in Gibraltar with my children. I was born in the UK and lived there until about 20 years ago with my husband.. My husband moved back to the UK 8 months ago as our marriage broke down here in Gibraltar nearly 3 years ago. Can I still divorce him in the UK even though I’m living in Gibraltar and have no intention of returning to the UK.?

    1. It seems that your scenario may fall under point 3 as per the list in the blog. If your husband is now habitually resident in in England then you will be able to divorce him notwithstanding that you are still living abroad. Habitual Resident is a complex legal issue. You would need to obtain legal advice about your specific circumstances in order to ascertain whether your husband is habitually resident here. If I can assist please let me know.

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