The Ultimate Guide to Jurisdiction in Divorce

What is jurisdiction?

Jurisdiction refers to the authority of a court or other legal body to hear and decide a legal matter. 

Jurisdiction is generally determined by a combination of factors, including the location where the incident giving rise to the legal dispute occurred, the residence or location of the parties involved, and the subject matter of the case.

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Why is jurisdiction important?

Different countries have differing approaches to how divorces are decided – especially around finances and property. England and Wales is one of the few who sees marriage as a true partnerships, and looks to divide the fruits of that partnership evenly between the person who made the money and the homemaker. This can make a huge difference to the outcome, especially for high and ultra-high net worth families.

The English courts also have greater powers than most to investigate the financial resources available to the parties. They can also look at assets held indirectly, such as through trust and company structures. Additionally, UK courts have an international reputation for being free of corruption and able to deal fairly with even the most politically and financially influential people in the world.

Getting divorced in the most advantageous jurisdiction can make a huge difference to the outcome of your case. It can be the difference between getting your fair share and struggling to maintain your existing lifestyle. The impact of jurisdiction on any case will vary – and it is vital to get specialist advice if you are contemplating an international divorce. 

Can I get divorced in England?

Someone’s ability to get divorced in England and Wales will depend on their connection to the country. This can be complex when an international couple are divorcing, especially if they have connections to multiple different countries.

You will be entitled to get divorced in England and Wales if you meet any of the following criteria:

• both parties to the marriage are habitually resident in England and Wales
• both parties to the marriage were 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 parties to the marriage are domiciled in England and Wales; or
• either of the parties to the marriage is domiciled in England and Wales

Whether you are habitually resident in a country can be a complex question, focused on where your life is centred. Equally, domicile will depend on various facts, including your father’s domicile at the time of your birth and whether you have developed a permanent establishment in any country since that point. If you are unsure about where you are domiciled or have habitual residence and are facing a divorce, you should seek legal advice immediately.

Will another country have jurisdiction?

Different countries have their own approaches to jurisdiction. They may use some of the same criteria as England and Wales, or other factors – such as where a couple was married. If you have any substantial connections to another country there is a chance that the courts there may have jurisdiction for your divorce.

This could have huge implications for the outcome, especially around your financial settlement. If you are concerned that your divorce might be heard in another country, you should obtain legal advice as soon as possible.

How do the courts decide which country proceeds with the divorce?

The courts in England will look at all the circumstances of your case and consider whether it is the best jurisdiction to decide it. This will look at your nationality, where you live, where the assets are and other factors – including aspects of your partner’s life. It will then decide whether it is the place with the “closest connection” to the case. Sometimes this is referred to as forum non conveniens principle.

Any other country will have its own rules for deciding whether it will hear a divorce or not, especially when proceedings are already happening in another country. If you have links to multiple countries, you will need specific legal advice suited to your circumstances.

WHAT IF I’M ALREADY GETTING DIVORCED ABROAD?

If your spouse has begun proceedings in a foreign country, it may still be possible to obtain a divorce in England and Wales. This will depend on the status of the foreign proceedings and your links to England and Wales.

I AM ALREADY DIVORCED ABROAD, BUT DIDN’T RECEIVE A SETTLEMENT – CAN I DO ANYTHING?

In certain circumstances, the English courts can make a financial award even if the divorce happened in a foreign country. These claims, known as Part III, are only allowed in limited circumstances, when insufficient financial provision was made for a spouse. Examples of this include Islamic talaq divorces, which do not consider the division of assets.

If you have been divorced abroad you may still be able to claim a fair share of the assets. The English court retains the ability to look at the circumstances of your case and make an award from the marital assets even if the marriage has already ended. Again, this is a highly specialist application and you should obtain legal advice as soon as you can.