Establishing jurisdiction & grounds for divorce
Establishing jurisdiction (residence and domicile)
London is known as the “divorce capital of the world”, but not everyone is entitled to divorce in the London courts. To have your divorce heard in England and Wales, it is necessary to establish jurisdiction.
The rules in relation to jurisdiction can be complex and it is vital to obtain legal advice quickly if you think that you may be entitled to divorce in more than one country. The country where a divorce takes place can make a huge difference to the financial consequences.
As a rough guide, whether you can be divorce in England will depend on where you are domiciled, and what your habitual residence is. Domicile is a technical legal term. Generally, your domicile will be your domicile of origin – the country in which your father was domiciled when you were born (i.e if you were born in France, but your father was domiciled in England, then your domicile of origin would be England). It is possible, however, to have changed this to a “domicile of choice” by permanently moving to a country and severing all ties with your domicile of origin.
Habitual residence is a more straightforward term, and refers to where your “centre of interests” is. This will be informed by the facts of your situation, including where you are based, where your children go to school and the links you have to a particular country.
Whether you can be divorced in England is governed by European law, and will be allowed if one of the following is met:
- Both you and your spouse are habitually resident here;
- The person receiving the divorce petition is habitually resident here;
- You were last habitually resident as a couple here, and one of you still lives here;
- You are habitually resident in England and Wales and have been for 12 months;
- You are domiciled here and have been habitually resident for six months; or
- You are both domiciled here.
If no other European country has jurisdiction, you might also be able to issue proceedings in England if either of you is domiciled here at the date of the petition.
Where there are multiple competing jurisdiction, it is vital to act quickly, as within Europe the first country to issue a petition will have jurisdiction.
Grounds for divorce
England and Wales does not yet have “no-fault” divorce, so the initial petition must blame one person for the breakdown of the marriage. There is only one ground for divorce – irretrievable breakdown – but it has to be supported by establishing one of four facts.
These are “adultery”, “behavior making it unreasonable for the petitioner to live with the respondent”, “desertion” and “separation”. Most petitions proceed on the basis of behavior. This does not have to be objectively unreasonable, but rather things that show that your marriage has broken down. Often it is possible to agree a divorce petition in an anodyne and non-confrontational way.
For civil partnerships and same-sex marriages, the process for bringing them to an end is very similar. The one exception is that a same-sex relationship cannot be dissolved for reasons of adultery. The process for financial provision is exactly the same.
In the modern era, the court is unlikely to examine in great detail the reasons for the breakdown of the marriage and it will have no impact on the financial outcome of your case.