You may have been here for a while; it may well be that although you intend to live in England post-divorce and are looking for a property in this country, you do not have sufficient standing in England to issue a petition for divorce here. This may even be the case where the marriage ceremony took place here.
The circumstances in which the English court does have jurisdiction to hear a divorce suit are governed by the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Matrimonial Matters 1998 ("Brussels II") and broadly involve a person demonstrating that they have “habitual residence” and/or “domicile” in this country. (These terms are dealt with in more detail on this website in the section “International Families”).
The recent case of Marinos v Marinos concerned the English court’s jurisdiction under Brussels II to hear a divorce suit by a wife who petitioned in this country. The case is significant in clarifying the meaning of “habitual residence” and in so doing, may have made it easier for an applicant to issue a divorce petition in England, even where they have only been living here for a short period of time or intermittently prior to issue of proceedings.
Marinos involved a husband who was Greek and a wife who was English. They married in the UK in 1992. In late 2002, the parties moved to Greece and their two children were enrolled in schools there. In July 2003, the wife returned to part-time work with British Airways, which involved working three weeks in a nine week period. She would travel from Athens to London and then from London to Athens, as dictated by her contract. In September 2006, she increased her contractual hours to working four weeks in an eight month period. In addition, between September 2004 and June 2006, she completed a professional course part-time in Birmingham, staying in her parents’ house whilst studying and also when on holiday in the UK with the children.
The parties separated on 31 January 2007 and the wife returned to England with the two children, who started new schools in February 2007. The wife issued the divorce petition in England on 1 February 2007, (the day after she returned). In March 2007, the wife and the children moved back into their home in London, following its vacation by the tenants. The husband continued to live in Greece and also issued a divorce petition there. The main question in this case was, therefore, whether England had prior jurisdiction over Greece to hear the divorce.
The wife had issued her divorce petition under the ground that she was habitually resident in England and Wales on the basis that she was domiciled in this country and had been residing here for at least six months immediately preceding the petition. There was no dispute that the wife had domicile and the only issue, therefore, was did the wife fit within the definition of “habitual residence”?
It was held that in order to satisfy the “residence” test, a petitioner has to show (i) habitual residence on a particular day; and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period. Significantly, this means it is only necessary for a petitioner to have been resident, (as opposed to habitually resident), for the relevant period set out in Brussels II, provided they were habitually resident at the time of the petition.
So, what is meant by “habitual residence”? Marinos determined that the “centre of interests” test is the correct one for ascertaining a party’s habitual residence and is satisfied where it can be shown that the country in question is “where the person established, on a fixed basis, his permanent or habitual centre of interests”. In this case the wife had a permanent home in London, her children were enrolled in schools here and her own parents lived here so this test was satisfied.
Marinos also made it clear that a habitual residence may be acquired (or re-acquired) instantaneously upon arrival in a country. Indeed, the wife in this case had only been back in the UK for 24 hours and this was considered sufficient for her to have acquired a habitual residence in this country.
Consequently, it was held that the wife was entitled to petition for divorce in England on the date she had done so, and the husband's Greek petition could not be pursued.
Emma Flisher