Divorce or Dissolution Jurisdiction

What is Jurisdiction?

Jursidiction is the practical authority to interpret and apply the law and it is granted to a formally constituted legal body, such as a court. The term jurisdiction is really synonymous with the word "power". A court possesses jurisdiction over matters only to the extent granted to it by the Constitution, or legislation of the sovereignty on behalf of which it functions.

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Jurisdiction And Domicile Explained

Why is Jurisdiction Important?

In order to dissolve a marriage or civil partnership there are strict rules on when the Courts have divorce and dissolution jurisdiction to deal with a Petition for Divorce/Dissolution. These are governed by Council Regulation (EC) 2201/2003, known in legal circles as the “Brussels II bis”. This applies uniform rules across Europe to try and stem multiple Petitions being issued in different jurisdictions. Increasingly, particularly with very wealthy people, there has been a tendency to apply for a divorce or dissolution in whichever country they believe will give them a more favourable hearing.

England and Wales have a different legal system to Scotland and Northern Ireland. We are qualified as solicitors in England and Wales and only deal with cases in these two countries.

To be able to Petition within England and Wales you have to be able to show one of the following:

  • You have a valid marriage that is recognised in England and/or Wales
  • Both parties are habitually resident in England and Wales (this means ordinarily resident, i.e. a regular physical presence which must last for some time); or
  • Both parties were last habitually resident in England and Wales and one of them still resides there; or
  • The Respondent is habitually resident in England and Wales; or
  • The Petitioner is habitually resident in England and Wales and has lived there for at least a year immediately before the petition is filed; or
  • The Petitioner is domiciled (i.e. has their permanent home) in England and Wales and has been residing in England and Wales for at least 6 months immediately before the Petition is filed; or
  • Both parties are domiciled in England and Wales; or
  • Either party is domiciled in England and Wales on the date when proceedings are begun, none of the above applies and no court of another EU state has jurisdiction.

What is a Domicile?

You acquire domicile at birth, from your father if your parents are married or your mother if they are not. This applies irrespective of where you are born and is known as domicile of origin. Domicile of origin is never lost, but can be suspended when you adopt a domicile of choice (i.e. choose to live somewhere else permanently). Permanence can be determined by time spent in a country, purchase of a property or taking citizenship of that country. No one test is decisive, it is more a question of looking at matters in detail.

What if someone applies for a Divorce Petition in another country?

Once a Petition is issued in one of the EU Member states covered by Brussels Iia, the Courts of that country have exclusive jurisdiction. Any proceedings commenced in another Member State will therefore be stayed (halted). If proceedings are commenced in a non-Member State, then second proceedings are normally stayed, but this is not guaranteed.

Foreign decrees will not necessarily be binding on the courts in England and Wales. If the court does not recognise the foreign decree (a legal term meaning accept it is valid and binding in this jurisdiction), then you would need to obtain a decree of Divorce/Dissolution in this country, for the court to be able to deal with financial issues.