Where should divorce proceedings be issued?

The question of where to issue divorce proceedings can make a fundamental difference to the outcome of any financial settlement upon divorce, given the diverse approaches adopted by different jurisdictions to the separation of matrimonial assets.

If you have lived in a number of different countries or have assets in different jurisdictions, then it is extremely important that you take professional advice before taking any steps towards issuing divorce proceedings.

England and Wales

Once a decision has been made to issue divorce proceedings in England and Wales you must first look at establishing jurisdiction.

There are a number of conditions which can be met in order to establish jurisdiction:

1. Both parties are habitually resident in England and Wales.
2. Both parties 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. The applicant is habitually resident in England and Wales and has resided there for one year immediately before the application was made.
5. The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months before the application was made.
6. Both parties are domiciled in England and Wales.
7. Either party is domiciled in England and Wales.

There are a number of terms within these conditions which require further clarification.

Habitual residence

Your habitual residence is the place in which your life is mainly based, and where you are settled. As described in the divorce petition itself, you might work there, own property there, be registered to vote, and have your main family life taking place there.

An important distinction is that although you may be habitually resident in England and Wales, it is possible for you to be resident in, and split your time between, a number of different jurisdictions at the same time.

If you wish to rely on habitual residence, you must be resident here for at least six months prior to issuing the divorce petition. You may not have to be physically present for the whole six months as you may split your time between two residences in different jurisdictions and still be resident in both, whilst being habitually resident in England and Wales, although specific circumstances will have to be considered.

Domicile

This is your main permanent home, or the place you intend to return to. When you were born, if your parents were married you would have inherited your father’s domicile but if they were not married then you would have inherited your mother’s domicile. This would be a ‘domicile of origin’.

A person can live in another jurisdiction for decades but still retain their original country of domicile, and it is possible to be habitually resident in one country but domiciled in another. An important point is that this is a different concept to domicile for tax purposes.

A choice can be made to change your domicile, but careful consideration will need to be given as to whether this has taken place, with reference to residency status, property, employment, retirement plans, and leave to remain in a jurisdiction indefinitely. Each scenario will be different and judged upon its own facts.

Potential difficulties

Difficulties can arise in England and Wales when neither party is habitually resident here and only one party is domiciled here.

If a petition is issued in these circumstances, the options for a party pursuing a financial remedy can be severely restricted.

In the case of a ‘sole domicile petition’ applications for maintenance are prohibited under EU law and also the 2007 Hague convention, and therefore the court would only deal with the capital assets of the marriage.

Therefore, issuing such a petition can have serious unforeseen consequences if full consideration is not given beforehand.

If you need support or advice related to any of these issues, please get in touch with our expert team.