‘Where should I issue divorce and financial proceedings?’ is a frequently asked question we get. This article explores whether you are able to issue divorce and financial proceedings in England, and also what steps should be taken where you have links to other countries.
Can I issue divorce and financial proceedings in England?
In order to be able to commence divorce and financial proceedings in England, you must satisfy one of the following grounds:
- You and your spouse/civil partner must be habitually resident in England;
- You and your spouse/civil partner must be last habitually resident in England, and one of you must still reside here;
- Either your or your spouse/civil partner must be habitually resident in England if you are making a joint application;
- The applicant is habitually resident and must have resided in England for at least one year immediately before making the application;
- The applicant must have resided in England for at least six months immediately before the application was made and is domiciled in the UK or Ireland;
- You and your spouse/civil partners are domiciled in England.
Provided you satisfy one of the above grounds, you are eligible to issue proceedings in England. These grounds are rather complicated; if you are not sure whether you satisfy one of these grounds, then you should seek legal advice.
I have links to Germany and England. Should I issue divorce and financial proceedings in England?
It is difficult to say without knowing the full facts of your circumstances whether you have grounds to issue divorce and financial proceedings in England. However, if you have grounds to issue proceedings in both Germany and England, it would be a good idea to seek legal advice in both countries so you are aware of the approach they take to the division of assets. Other factors, such as the approach the country takes to the enforcement of financial orders and how they deal with disclosure, are also important to consider.
Since Germany and England are still part of the European Union, the country which is ‘first seised’ shall have jurisdiction. What this means is that the country the divorce and financial proceedings are issued in first has the power to deal with the divorce and financial proceedings; this is regardless of whether it would have been more appropriate for the other country to deal with the matter. This is why it can often lead to a ‘jurisdiction race’ with parties trying to secure jurisdiction first.
It is therefore important you act quickly if you have any concerns that your spouse may issue proceedings in another country which is part of the European Union. Of course, it remains to be seen what will happen once the UK leaves the European Union.
I am a UK national and my husband is from China. We moved to China two years ago for his work. This was only meant to be temporary, so we decided to rent the family home in England out to tenants. We have been having relationship difficulties, and I moved back to England with our children 7 months ago. Can I issue proceedings in England?
You may be able to issue divorce and financial proceedings in England on the basis that you:
- Are habitually resident in England;
- Have been resident in England for the six months prior to making your application; and
- Are domiciled in England.
Some of these terms are technical, so it is important to consider what they mean.
‘Habitual residence’ is where a person has established ‘on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purposes of determining such residence.’ In deciding whether a person is habitually resident in a country, it is important to consider the following:
- Where children are educated;
- Where pensions and investments are located;
- Where property is owned;
- Where tax is paid; and
- The location of health care professionals such as dentists and doctors, as well as advisers such as solicitors.
These are only indicators and are not exhaustive; not all will be determinative as to where a person is habitually resident. However, if you were able to answer England to all of the above, this may be suggestive of the fact that you are habitually resident in England.
‘Domicile’ is slightly more complicated and can be acquired from your parents, or by choice. The latter involves there being residence in a country coupled with an intention to reside in that country permanently.
On the basis of the information you have provided, it seems as though you would be able to issue proceedings in England. However, more information is needed to confirm this. You should consider seeking legal advice if you are concerned that your husband may issue proceedings in China. However, it is worth mentioning that since China is outside of the European Union, there is no such thing as a jurisdiction race. This means that were your husband to issue proceedings in China, they would not automatically have jurisdiction and you could contest it on the basis that it was more appropriate for proceedings to be dealt with in England.
Would I better off issuing proceedings in England or another country?
This is something we cannot advise you on without having further information about your circumstances. Whilst we can certainly advise you as to what would be likely outcome in your case in England if the matter went to Court, you would need to seek legal advice in the other country you were considering issuing proceedings. As well as the approach the country takes to the division of assets, there are also a number of other factors you should consider, about which we can advise you. Please contact us for further information.
