WHERE TO DIVORCE
Times are changing. More and more people are emigrating to and from England
and Wales and a question arises as to which is the correct country to issue
divorce proceedings. It is a misconception that one should divorce in the
country in which one was married. In fact, the issue really revolves around
where the parties are living. The European Convention providing the rules
(colloquially known as “Brussels II”) specifies the different requirements with
regard to where parties can issue divorce proceedings.
With regard to where the parties are resident there are 6 possibilities. The
most straightforward of applications involves a Divorce Petition where both the
husband and wife are resident in England or Wales. If both parties are
habitually resident here, there would be no issue about another jurisdiction
being the correct forum. If both spouses are not habitually resident in this
country, but one had emigrated, the other spouse could still bring a Petition
here if the parties were both last habitually resident here, and one of them
continues to reside here. The next category involves cases where the person
bringing the Petition is clearly abroad but the Respondent is habitually
resident here (whoever brings the Petition is known as ‘the Petitioner’). The
party receiving the Divorce Petition is known as ‘the Respondent’. There is a
possibility of two spouses making a joint application and, providing one is
habitually resident in this country, then that would also be a case where the
Petition would be accepted by the Courts here. However, in practice, joint
applications are rather rare.
Therefore, the test is really about where the parties habitually reside. If
the parties do not live in the same country as one another, then the
jurisdictional test becomes more stringent. If spouses do not fall into one of
the above categories, then they are left with only two options. The first is
where the Petitioner is habitually resident and has “resided” for at least one
year immediately prior to the application. This is a very interesting piece of
law. The reason being is that the legislation separates the meaning of “habitual
residence” with “residence”. Therefore, if a spouse had come forward and
backwards to England over the course of the last year, but had their main
residence in a different country, they might be able to still apply for divorce
in this country, providing that they decided to move back here. That spouse
would then be considered to be habitually resident from the day that they
arrived back in this country, providing it was their intention to stay here
permanently thereafter.
The last category is where the Petitioner is habitually resident and has
resided here for at least 6 months before the application was made and is either
a member of the E.U. or, alternatively, if in the United Kingdom or Ireland,
they were domiciled here.
Domicile is also interesting. One has a “domicile of origin” and a “domicile
of choice”. Domicile of origin is simply where parties were born. Domicile of
choice is where the parties have chosen to be domiciled. One can choose to be
domiciled anywhere they like on one day, move countries and choose to be
domiciled in another the next day.
Therefore, if a spouse has some kind of link to England or Wales, it is
likely that their Divorce Petition will be considered by the English Courts.
There is a possibility of applications occurring in other countries around the
world concurrently with an English Petition. This is not the case within Europe.
If a spouse petitions for divorce in one E.U. country and the other spouse
petitions in another, then it is simply a matter of who went to Court first.
Whichever Court issued the Petition first will dictate where those proceedings
are run. The upshot is if you want to divorce in England, one of the parties
needs to be living here.
There are huge advantages to divorcing in England and Wales (often depending
on whether you are the financially stronger or weaker party). England and Wales
provide generous maintenance provisions upon divorce and the Courts are prepared
to consider all kinds of things as being in the “matrimonial pot”. This is not
the case in many other countries where financial divisions can be much smaller
for the financially weaker party.
For further information regarding matters arising from this article,
telephone Martin Chambers on 020 7405 4022 or email mchambers@rollingsons.co.uk.
Martin Chambers is a Partner of Rollingsons and the Head
of its Family Department. He is married with two children and lives in Ascot.
His out of work interests include football, rugby and travel.
You can visit Rollingsons online at www.rollingsons.co.uk
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