Establishing Jurisdiction in England and Wales
Jurisdiction does not depend on your nationality or where you married. These factors are not relevant.
To divorce in England and Wales, you must meet at least one of the following criteria:
Both parties to the marriage are habitually resident in England and Wales
Both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
The Respondent is habitually resident in England and Wales
The Applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
The Applicant is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately before the application was made
Both parties to the marriage are domiciled in England and Wales; or
Either of the parties to the marriage is domiciled in England and Wales
Your country of domicile is normally the country which you consider to be your permanent home.
Habitual residence means the country where you normally live. However, both concepts can be legally complicated and depend on a number of factors.
Therefore, you should seek legal advice at an early stage.
What to do with competing jurisdictions?
Different countries have different rules with regard to jurisdiction.
Therefore, if you have connections with more than one country, it is possible that more than one country will have jurisdiction to deal with your divorce.
What should I do if another country also has jurisdiction to deal with my divorce?
It is important to take early advice from a lawyer in any country which may have jurisdiction for your divorce as to how the courts of that country are likely to deal with your divorce.
You will then be able to make a decision as to whether it is better to proceed in England and Wales or in the foreign jurisdiction.
What happens if I issue divorce proceedings in England and Wales and my spouse issues divorce proceedings in another jurisdiction?
If there are divorce proceedings in competing jurisdictions, the approach of the English Court is that the proceedings should go ahead in the “forum conveniens” or most convenient jurisdiction.
The factors which the court is likely to take into account when assessing which jurisdiction is the forum conveniens are as follows :-
The parties’ nationalities and domicile
The location of their current family home
The location of their other assets
The history of where the parties have lived and worked during the marriage
Cultural background
The parties’ command of the language of each country
Where the children are based and educated
Where the parties extended families live
The comparative legal costs of divorce proceedings in each jurisdiction
Availability of witnesses and documents
Which proceedings were issued first and what stage has been reached in each set of proceedings
Other links to each jurisdiction
Both sets of proceedings are usually put on hold until the court decides which country should deal with the divorce.
Each person can set out their views on which country should hear the case.
The judge will then make a decision at a hearing.
Talk to Orwins for legal guidance on UK divorce
Talk to our family law team at Orwins to find out how we can help you with divorce proceedings here in the UK; we're here to help.
