How jurisdiction can affect a divorce

Since moving to the B P Collins LLP family practice group over three months ago, I have become very familiar with the procedure for divorce in the courts of England and Wales. 

Divorcing a spouse involves at least two simultaneous aspects: the financial settlement and the actual dissolution of the marriage, which is the divorce itself.  It is generally agreed amongst responsible practitioners that the dissolution of the marriage should be an uncontroversial process.  One spouse making unnecessarily critical allegations about the other in a divorce petition is not only unnecessary for a divorce to be processed, but could also be counterproductive when negotiating over finances, which is usually the pressing issue of the case.

It is often my job as a trainee to draft the initial divorce petition as, in the vast majority of cases, this is both straightforward and uncontested. However, while divorce proceedings are considered simple once they have begun, it can be trickier to determine where they should be started. 

Many of the firm's family clients have international connections, this may be because their spouse has a different nationality or some or all of their assets are based abroad. This may mean that more than one country could have jurisdiction to hear the divorce. Where a divorce is heard is significant because that country will usually also be where the finances are decided. There are very different approaches to finances on divorce even in jurisdictions that are geographically close (for example, England and Scotland). Therefore where to start the divorce takes on a wider significance as it is part of securing the most advantageous financial outcome for our clients.

The courts of England and Wales will either accept or refuse jurisdiction of a divorce petition and the way they decide this depends on whether the parties are habitually resident in the European Union (EU) or a non-EU jurisdiction. 

EU law governs where cases should be heard. Divorce cases are governed by the Brussels II bis Regulation.  The Regulation is binding in all EU states except Denmark and it says that, for most of the EU, jurisdiction will lie with the state of the couple’s habitual residence or of their nationality. However, if the English court is making the decision, nationality is not a relevant factor, jurisdiction will be decided by the state the couple is habitually resident or domiciled in.

Everyone is born with a domicile of origin. This is retained unless one acquires a domicile of choice in a different country.  To do this a person must sever all personal, social and economic links with their domicile of origin and demonstrate a definite and permanent intention to regard their new country of residence as their permanent home.

For non-EU divorce cases, again, the state in which the couple is habitually resident will have jurisdiction.  However, if either the petitioner or the respondent is domiciled here, the court of England and Wales will accept jurisdiction.

In both regimes a “first past the post” system is in place, meaning that the country in which divorce proceedings are first issued will have jurisdiction of the proceedings. Sometimes this can lead to a “race” between lawyers in different countries who are rushing to lodge their papers with their court first.

This in particular can be problematic for English wives who are living abroad or are married to a person of foreign nationality because perhaps they could be subject to less favourable proceedings in other countries if their husband issues his petition in a foreign territory first.

I have learnt that this complicated area makes it all the more important for separating individuals with foreign connections to take legal advice at the earliest possible stage and for lawyers to act quickly where the circumstances dictate.  

Posted by Matthew Crockford, trainee in the family practice.

Matthew started his training contract with B P Collins LLP in January 2012. He graduated in 2010 from The University of East Anglia with a 2:1 (Hons) in Law before moving on to the Oxford Institute of Legal Practice to study the LPC, achieving a Distinction. In his spare time Matthew enjoys playing football (mostly 5-a-side) and watching Tottenham Hotspur FC whenever possible.  Interestingly he used to be in a heavy metal band, but grew out of the idea!