18 December 2012, by Taylor King Family Law Solicitors
During the last twelve months we have been instructed by clients involved in divorce and family law cases involving nationals of or having connections with Australia, South America, Canada, the USA, Europe, the Middle East, Asia and Africa. This article explores the English court’s power to divorce couples where there is an international element.
The Court’s power to grant a divorce in England or Wales depends upon whether a spouse has a sufficient connection with this country.
It does not matter if the divorcing couple were married abroad. If the marriage certificate is not in English it will need to be accompanied by a certified translation when the divorce proceedings are issued.
In March 2001 a European Directive came into force which clearly sets out the criteria for issuing a divorce in England and Wales. One of the following must be satisfied:
- Both parties live in England and Wales
- Both parties were jointly habitually resident in England and Wales and one spouse still resides here
- The Respondent is habitually resident in England and Wales
- The Petitioner has been habitually resident in England and Wales for the last 12 months
- The Petitioner is domiciled in England and Wales and has resided here for at least six months
- Both parties are domiciled in England and Wales
Habitual residence is proved by being in England and Wales for a settled purpose with the intention to remain here for a significant period of time. A person can only have one habitual residence.
Domicile is harder to define. A country of domicile is the country where a person has decided to live and has their closest ties. A person can either have a domicile of origin (acquired automatically at birth) or a domicile of choice where a person resides in a country other than their domicile of origin and intends to make that country their permanent home. Like habitual residency, it is only possible to have one country of domicile. However, it is possible to have a different habitual residency to country of domicile.
For example, if both parties are originally from this country and are currently temporarily living abroad for work purposes the courts of England and Wales would have power to issue divorce proceedings because both parties’ domicile of origin would be England and Wales.
Both habitual residence and domicile are decided on fact and if you are in doubt about whether you would be able to issue divorce proceedings in England and Wales it is best to consult a specialist family lawyer.