No place like home in divorce scramble
January 3, 2008 5 comments
Happy New Year – I hope your holiday was relatively stress-free. For some it was not, people wrote to me from abroad for advice about issuing divorce proceedings in England given their respective links with England, such as British nationality, education, owning a property in England etc. It is a growing problem and highlights the increase in the trend of ‘forum shopping’ where globe trotting couples seek a divorce in the most financially advantageous country.
I think it is a problem that should be legally resolved between the parties before the marriage is permitted to take place. Leaving the decision until a divorce is about to happen with the parties living anywhere in the world can create enormous legal headaches for both of them – and enormous legal costs alongside.
In most cases wives have very good reason to file in England because financial settlements may be better for wives than elsewhere. Maintenance payments for example, may not be available elsewhere. It is also possible to search more extensively into the spouse’s finances in England compared to other countries.
But, before you can issue proceedings you need to qualify. If both spouses are domiciled in England, there will be no problem, except that domicile is highly complex: in English law, a domicile “of origin” is acquired on birth and remember, Great Britain is not just England! If a person is born in Scotland, it means their legal domicile is Scotland and a different legal system applies. If a person leaves the country which is their domicile of origin, they may acquire a new domicile of choice. When and how that happens depends on the facts of the case. Domicile is not the same as simply ‘living’ in a country. It means adopting the country in every way and effectively giving up their “motherland.” It is also harder to lose a domicile of origin than a domicile of choice. So deciding whether both parties are domiciled in England is not as easy as it might seem at first sight.
Domicile does not apply in the rest of Europe where the nationality of both parties is the alternative and far more straightforward test. But nationality is more rigid.
An alternative is whether the proposed Petitioner is habitually resident in England and Wales and has resided there for (at least) six months immediately prior to the presentation of the Petition. It used to be the case that “habitual residence” could mean habitually residing in two different countries, thus allowing a Petitioner to argue she was habitually resident in England even if she spent more time in another country, but in one recent case in which the court appeared to standardise this particular meaning of habitual residence to the rest of the EU, it no longer applies.
Habitual residence can only apply to residence in one country where the person’s interests are effectively centred and have to be fully established and demonstrable for at least six months before divorce proceedings are issued. For wives wishing to “up sticks”, return quickly to England and issue a divorce petition, this could be no longer the easy option it once was. However, the good news is that habitual residence can be regained in a day and those who can demonstrate a form of residency in England remains (even though the family have moved elsewhere) can still succeed. In a recent case, a woman who left with her family for Greece retained a room at her parent’s house in London. She took a part time law course in England, worked in England part time and kept returning, maintaining strong links with home. Her ‘residency’ in England (such as it was) transformed to habitual residency once she finally left Greece for good to return to England and she was successful.
But suppose you haven’t retained your English links and you are sitting reading this in despair because the sticky answer to both these questions is “No”;- what else may be available?
s5(2)(b) of Domicile and Matrimonial Proceedings Act 1973, provides that if ‘no court of a Contracting State has jurisdiction under Council Regulations and either of the parties to the marriage is domiciled in England and Wales on the date when proceedings are begun’ then an English court shall have jurisdiction to entertain proceedings for divorce or judicial separation.
This is a useful catch-all, for spouses living in a third, Non-EU country where they wouldn’t necessarily wish to institute divorce proceedings.
The complexities of establishing jurisdiction stretch lawyers’ minds every time the question arises. However, because jurisdiction is critical in cases where the EU holds sway, delay can fatally affect a financial settlement – something which places an unfair pressure on the client when he or she is not yet ready to formally end the marriage.
My advice as a solicitor is to be first out of the starting blocks. If you don’t issue first, you may regret it. However, a warning! If the court finds it has no jurisdiction, you could end up paying all the legal costs.
Compare and contrast however with the fairer situation involving non-EU countries – there the English Court can effect a balancing act between the parties to decide which country is the most closely connected.
Image by annie! via Flickr under a Creative Commons licence