Jurisdiction

Put simply, jurisdiction is the country in which court proceedings relating to your divorce, financial matters and children arrangements will be dealt with. If your marriage has an international element to it, the issue of jurisdiction will come up in the event you divorce.

Grounds of jurisdiction in divorce

The country where a divorce takes place can have a big impact on your divorce settlement. So it is vital to choose the jurisdiction carefully. However, you cannot simply do some research and pick a country where you think the divorce laws will be kindest to you and start proceedings there. You must demonstrate a connection to the country you want to divorce in and your ability to divorce in that country will depend upon:

  • Habitual residence – you may be able to divorce in a country where you or your ex live regularly, for example if you work or study in that country
  • Domicile – you may be able to divorce in the country where you or your ex live permanently
  • Nationality – you may be able to divorce where you or your ex-partner are a national of that country
  • Where the marriage took place – you may be able to divorce in the same country where the marriage originally took place

It is possible that you will be able to divorce in more than one country, and it is essential to get advice from a specialist family lawyer about which form of divorce jurisdiction would be best for you. The time and legal costs involved in getting divorced differ greatly from country to country. Different countries approach the financial arrangements between couples on divorce in very different ways. Procedures also vary from country to country, particularly in relation to the disclosure of money and property.

This means that a couple with the same financial resources could end up with very different financial arrangements if their divorce is dealt with in England than if it were dealt with, for example, in France or one of the US states.

You can get divorced in England or Wales if all of the following are true:

  • you’ve been married for over a year
  • your relationship has permanently broken down
  • your marriage is legally recognised in the UK (including same-sex marriage)
  • you or your ex have a sufficient connection with England and Wales. One or more of the following need to be true:
    • you or your ex were domiciled in England and Wales when divorce proceedings begin
    • your ex is habitually resident in England and Wales
    • you are habitually resident in England and Wales and have been living here for at least 12 months immediately before you issued your divorce petition
    • you are domiciled in England or Wales and have been living here for at least six months immediately before you issued your divorce petition
    • you or your spouse were last habitually resident in England or Wales and one of you still lives here

If you are able to divorce here and in an EU country, it is important to be aware that there has been a big change because of Brexit.  Before Brexit, there was a rule that meant the country whose court received the divorce petition first dealt with the divorce.  This resulted in couples “racing” to be the first one to start proceedings in the country that was most advantageous to them.  This rule no longer applies.  Instead we have a new rule which says that if there is a dispute as to whether England and Wales or an EU country should deal with the divorce, the country with the “closest connection” to the couple should deal with it. Speed is still highly important but there will be more consideration about which country is the most appropriate and relevant place for the divorce to be dealt with.

It is not always clear how EU countries are dealing with these disputes after Brexit so it is important to take legal advice if you are considering a divorce and you think your ex may try and start proceedings in another country.

If you are able to divorce here and in another country which is outside of the EU, speed is still highly important. However, different rules apply as to which country should have jurisdiction. It may not be a case of which country first issued a divorce petition but instead which country is the most appropriate and relevant place for the divorce to be dealt with. These issues are complex and it is very important that you seek advice as early as possible.

Jurisdiction in divorce cases

With many years of experience advising international families, no matter how novel or complicated your issue is when it comes to jurisdiction it is very likely we have considered it before and we will know how to solve it. Recently we have:

  • coordinated advice for a client from who had the option of divorcing in four EU countries including England and Wales, making best use of our international network of European lawyers
  • prepared a pre-nuptial agreement for a wealthy client where careful consideration around jurisdiction was needed because, in the event that the marriage broke down, a divorce could not only take place here but in a number of other countries including Switzerland, New York and Israel all with very different outcomes
  • faced with an argument that the divorce should take place in Indonesia, we were able to successfully demonstrate that not only was our client habitually resident in England but the most appropriate place for hearing the divorce was England, enabling her to divorce here and receive a fairer financial award

Advice on divorce jurisdiction

For more advice on international jurisdiction, talk to our team of lawyers today. Our specialists are experts in jurisdiction in divorce cases, so you can rest assured that we have the experience needed to understand your situation.

Whatever your circumstances, we are here to help make proceedings easier. Talk to us for support and advice today.   

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