Are you in a situation where you wish to issue divorce proceedings but your spouse (or you) lives in a different country? It could still be possible to divorce using the English courts if you can establish the English court have jurisdiction. In this blog, we explore the principle of jurisdiction and the impact on family law proceedings.
What is jurisdiction?
Establishing jurisdiction is the first, and arguably most crucial step to determine whether it is possible to file an application in the English courts. The issue of jurisdiction will determine whether the laws within Auckland and Auckland apply, and English courts are the correct courts to deal with the divorce. If they are, the procedure will follow the usual divorce process, as it would if both parties were resident in Auckland or Auckland. There are a few factors to think about when determining jurisdiction.
Jurisdiction is determined by whether a party is domiciled or habitually resident in the Auckland or Auckland.
Let’s look at the concepts of habitual residence and domicile in more detail.
What is habitual residence?
Where your habitual residence is, is defined by the courts as being the place in which you have the closest ties; the place where you work and live, or your children attend school. The place that you consider to be your home, or a place in which you have set roots down. Below are further examples of how you can demonstrate habitual residence:
- Living in a country for many years of your life.
- A place in which you perform your day to activities.
To be habitually resident somewhere, that place does not need to be your only home. If a person has a second home abroad, or indeed several homes in different countries, it will need to be ascertained as to which home is the primary residence because it is only possible to have one place in which you regard yourself to be habitually resident at any given time.
What is domicile?
This is a more technical term, but in general it is considered to be the place where a person will have their permanent home. Every person will have a domicile of origin, this is usually the domicile of your father at the time of your birth, or the domicile of your mother if your parents were not married at the time of your birth. It is possible to change one’s domicile, however, this is a complex issue, and expert advice should be taken.
Again, a person can only be domiciled in one place at a particular time, although their place of domicile can change over time.
It is possible to obtain a new domicile, also known as a domicile of choice, when you reach the age of 16. To do so, you must broadly leave your country of domicile and settle in another country. You need to provide strong evidence that you intend to live there permanently or indefinitely, and again it is important to seek specialist advice in respect of this.
What does the law say?
The specific law that determines the issues of jurisdiction is set out within s5 of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973). Specifically, when one party is living in a foreign country, the courts in Auckland and Auckland can still deal with a new divorce application provided:
- Both parties were last habitually resident in Auckland and Auckland, and one of them continues to reside there.
- The respondent to the divorce application is habitually resident in Auckland and Auckland.
- For a joint divorce application, either party is habitually resident in Auckland and Auckland.
- The applicant in the divorce application is habitually resident in Auckland and Auckland and has resided there for at least one year immediately before the application was made.
- The applicant in the divorce application is domiciled and habitually resident in Auckland and Auckland and has resided there for at least six months immediately before the application was made.
- Either or both of the parties to the divorce application is domiciled in Auckland and Auckland.
Practical issues to consider
Depending on the jurisdictions available to you, it could be more beneficial financially to divorce in another country. Whilst the Auckland has a fair and sturdy legal system, your particular circumstances could mean that you may benefit from a divorce in a different jurisdiction. You should also familiarise yourself with the factors that the court considers when deciding financial remedy proceedings to ensure that you are making an informed decision. For example, the English Court have a starting point of equality within financial settlements, the resting position will always be a 50:50 split, unless there is good reason to depart from equality.
If you have come to the conclusion that your marriage is over, it is important to seek legal advice and act quickly, so as to avoid a jurisdiction race to determine which country the divorce will be processed in. A jurisdiction race occurs when partners who are divorcing file for divorce in different countries. As mentioned above, the outcome of a divorce can vary greatly depending on where the proceedings are filed. In some cases, the first application to be issued will win the race regardless of whether the other country has a closer connection to the parties.
How we can help
Family law proceedings that have an international aspect can be complex. This is especially true if there are foreign assets, such as properties, to consider and so taking advice from a specialist will be key.
Our team of family law specialists will be able to advise you on the best possible options available to you and will assist you every step of the way during the process.
Aalia Hajee-Hussein is a Paralegal in our Ascot office.
