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Establishing jurisdiction & UK grounds for divorce

In high-net-worth (HNW) divorce cases, it is impossible to underestimate the importance of ensuring the financial settlement proceedings are decided in the jurisdiction that most benefits your position. For financially weaker spouses, that jurisdiction is almost always England and Wales.

It is not for nothing that the saying London is the divorce capital of the world is trotted out so regularly in the media. When compared to other jurisdictions, judges in England and Wales are exceptionally generous to the financially weaker party in a divorce case. This primarily stems from the House of Lords landmark decision in White v White [2001] 1 AC 596 where the Court ruled that when considering the contributions made by each party to the marriage, the contributions made by the spouse who primarily cared for the home and children should be judged equally to those made by the spouse who went out to work.

White v White was shortly followed by another significant House of Lords decision, Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. In McFarlane, the Court ordered the husband to make payments of £250,000 per year to fairly compensate his wife for losses to her earning potential during their marriage. Mrs McFarlane had enjoyed a successful career before giving it up to raise the couples three children. The couple had assets of around £3 million and the husband earned £1 million per year. If the Court simply shared the assets equally, Mr McFarlane would quickly become far wealthier than his wife thanks to his earning potential, which remained undiminished during the marriage. The £250,000 annual payment ensured the settlement was fair to Mrs McFarlane. In giving her decision, Baroness Hale commented that the ultimate objective is to give each party an equal start on the road to independent living.

How is jurisdiction established in financial settlement cases?

You can file an application for divorce in an English or Welsh Court if one of the following applies:

  • The spouses are habitually resident in England and Wales.
  • The spouses were both last habitually resident in England and Wales and one of them continues to reside there.
  • The respondent is habitually resident in England and Wales.
  • The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.
  • The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.
  • Both spouses are domiciled in England and Wales.
  • Either spouse is domiciled in England and Wales.

If you are habitually resident in a country, your day to day life happens there. For example, you are classed as an habitual resident in London if your main office is based there, your children attend London schools, and most of your hobbies, friends, and activities take place in and around the capital. Your country of domicile, on the other hand, is the nation you consider your permanent home. This may be the country in which you were born, however, you can change where you are domiciled (known as domicile by choice). Perhaps you were born in New York but have lived in England for many decades and you consider it your home. In such cases, England, rather than the US, is your country of domicile.

What are the grounds for divorce in England and Wales?

The Divorce, Dissolution and Separation Act 2020 (DDSA 2020) radically reformed the legal requirements and procedure for divorce, dissolution, and judicial separation. One spouse is no longer required to blame the other for adultery, unreasonable behaviour, or desertion to show that the marriage has irretrievably broken down. The requirements of two years separation (if the other party consents) or five years separation (no consent required) have also been abolished.

The DDSA 2020 provides that no evidence is necessary to prove that the marriage has irretrievably broken down. All that is now required is a statement from one or both (joint applications are permitted under the Act) of the spouses that irretrievable breakdown has occurred. The Respondent to the application for divorce has no legal avenue to defend the application and thereby prevent the divorce from proceeding, as happened in the case of Owens v Owens UKSC 41, a decision that caused such outrage the Government was forced to stop dragging its heels and pass legislation to reform the law.

Under the DDSA 2020, the applicant/s must wait a minimum of 20 weeks before they can apply for a Conditional Order (formally known as a Decree Nisi). Not only is this time provided to give a couple the chance to reconsider, but also to allow opportunity for the negotiation of a financial settlement and to make arrangements for their children.

Does Brussels II Revised apply in the UK following Brexit?

The UK-EU Withdrawal Agreement provides that the courts of England and Wales are bound by the Brussels II Revised provisions in relation to any divorce proceedings instituted in a Member State before the end of the transition period. The Brexit transition period lasted between 31 January to 31 December 2020. Under Brussels II Revised, jurisdiction lies with the Courts of the contracting EU Member State where:

  • The spouses are habitually resident.
  • The spouses were last habitually resident, and one of them still resides there.
  • The respondent is habitually resident.
  • In the event of a joint application, either of the spouses is habitually resident.
  • The applicant is habitually resident if he or she resided there for at least one year immediately before the application was made.
  • The applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the UK and Ireland, has his or her "domicile" there.
  • Both spouses are nationals, or, in the case of the UK and Ireland, both spouses are domiciled.

All EU Member States bar Denmark are signatories to Brussels II Revised. In some cases, it may be that several Member States have jurisdiction to hear the divorce proceedings.

In conclusion

If you are unsure about which country to file your divorce application/petition, it is crucial to talk to a Divorce Solicitor who has extensive experience in international divorce. In HNW cases, the stakes are incredibly high, and therefore, ensuring you secure the most favourable jurisdiction in terms of deciding your financial settlement can result in a life-changing positive outcome for you and your children.

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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