In our article ‘International Divorce Part 1’, we considered the circumstances in which the courts in England & Wales may be the appropriate courts to bring an application for divorce. In considering whether it is appropriate to bring an application for divorce in the courts of England and Wales, we need to explore the terms of ‘habitual residence’ and ‘domicile’.
A summary of these two terms for the purposes of bringing a divorce application is set out below -
The term “habitual residence” can be interpreted in a number of different ways depending on the contexts. In establishing jurisdiction for the purposes of divorce, we must look at the definition of “habitual residence” as:
“the place where the person has established, on a fixed basis, his permanent or habitual centre of interests, with all relevant facts being taken into account for the purpose of determining such residence”(footnote: per accompanying explanatory report to Brussels II Revised).
A variety of relevant factors must be considered to identify where it is that a party centres their life and therefore where they habitually reside. A useful, non-exhaustive list of factors is set out below:
Every case will vary and some of the above factors will have more or less significance than others, depending on the case.
Habitual residency can be acquired swiftly and in fact almost instantaneously in some situations. In other situations, an individual may have a number of connections to a country (including owning a home) but may still be “habitually resident” elsewhere.
Domicile
The other method of considering whether the courts in England & Wales are the appropriate venue to hear a case is to consider whether the parties, or one of the parties, is “domiciled” in England and Wales for the purposes of a divorce petition.
If a client has only been habitually resident for six months and not yet for one year, they will also have to demonstrate that they are “domiciled” in England or Wales.
In understanding domicile it is important to bear in mind that:
permanent home. However a person may sometimes be domiciled in a country although he does not have his permanent home in it
b) A person receives a domicile of origin at birth
c) A person can acquire domicile of choice as a result of residence in a country and an intention of permanent or indefinite residence
d) Any circumstance that is evidence of a person’s residence or of his intention to reside permanently or indefinitely in a country must be considered in determining domicile of choice
e) In determining if a person resides in a country permanently or indefinitely, the court may consider the motive as to why residence was taken up, whether it was freely chosen and how secure/insecure that residence is;
f) A domicile of choice is abandoned if a person stops residing there and no longer intends to reside there permanently or indefinitely;
g) When a domicile of choice is abandoned, a new domicile of choice may be acquired but if not, that person’s domicile of origin is revived.
A careful examination of the facts needs to be carried out in determining a client’s domicile particularly so for international clients who have moved from one country to another.
Domicile and financial claims on divorce
Finally a cautionary note for those who rely solely on domicile for the purposes of bringing a divorce petition in England and Wales. At present, it is unclear whether such a person can also make a maintenance claim. In light of this, a client may wish to move to England and Wales for the requisite time period before issuing a petition so they can proceed on the basis of habitual residence for jurisdiction purposes as opposed to domicile. This would have to be subject to ensuring that there is no risk of proceedings being commenced in another country in the meantime
Alternatively, a petition may be issued on the basis of a client’s domicile immediately but the client ultimately moves to England and Wales to establish habitual residence after the domicile petition has been issued, so that they are not prevented from later making a maintenance claim.
Note – In the event that the UK leaves the EU on the terms of a withdrawal agreement or on a ‘no deal’ basis, the contents of this note will need to be revised.
These are complex issues and seeking specialist family legal advice is recommended. If you would like to discuss this article or require advice or information on any aspect of Family Law please contact our lawyers - Mitali Zakaria, Somia Siddiq, Priyanka Chakravarty or Alexandra Wilks.