Jurisdiction shopping post-Brexit

We are now almost halfway through 2021 and well into the new post-Brexit regime, and, as practitioners we are familiar with the fact that we can no longer rely on the EU Regulations which sought to harmonise EU law on jurisdiction.

Pre-Brexit, when more than one European country had potential jurisdiction in divorce, timing was determinative and it was a matter of who issued first as to which country seized jurisdiction. In England and Wales, jurisdiction is now determined on the basis of which country has the closest connection and which is the most appropriate when establishing who wins the race.

When the English court looks at which jurisdiction may be best placed to hear proceedings in an international divorce case, the following aspects are considered:-

1. Habitual residence
2. Domicile
3. Connection

The post Brexit rules for jurisdiction in England and Wales are found in the Domicile and Matrimonial Proceedings Act set out the following grounds:

1. both parties to the marriage are habitually resident in England and Wales
2. both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there
3. the respondent is habitually resident in England and Wales
4. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made
5. 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
6. both parties to the marriage are domiciled in England and Wales; or
7. either of the parties to the marriage is domiciled in England and Wale

Habitual residence is a question of fact and looks at where the parties have their closest ties and where you call home. For most people this is where they live and work. You can only be habitually resident in one place at any one time but your habitual residence can change.

For example, if you have two houses, one in France and one in England and you split your time between both, the factual deciding factors will include; where you are registered for a GP, where your place of work is if you are office-based, where your children attend school. Essentially, where the majority of your day-to-day activities take place.

Domicile is an English legal concept and starts with a consideration of a person’s domicile of origin.  This can then change to a domicile of choice which is the permanent place you would call home. It may be that you live there currently or it may be that it is the place you intend to return to in future. For example, if you are working in England for three years but your permanent home is in France, you may be habitually resident in England but domiciled in France. Your domicile can also move. If the temporary contract in England becomes a permanent one and you set up life in England with a view to staying, your domicile  may change from France to England.

If an application for divorce is made in two countries and there is a jurisdiction dispute, the English courts will  look at connection to see which jurisdiction has the closest connection and therefore which would be the most appropriate forum. Your connection is assessed on all of the factual circumstances and varies from case to case. It is important to obtain expert legal advice if there are questions in relation to jurisdiction and which country may be more appropriate.

The introduction of ‘sole domicile’ as a jurisdiction ground means that it is now possible to divorce on the basis of only one party’s domicile in England and Wales. While this does open up the possibility of many more people divorcing in England and Wales when living in another country, there are several notes of caution; recognition of the divorce abroad; enforcement of any maintenance orders made by the English and Welsh courts; the location of the assets.

There are reasons why France may be better for one person and England and Wales better for another person. For example, the commonplace ongoing spousal maintenance provision in England and Wales is unlikely in France. The standard of living enjoyed by the parties during the marriage does not have the same continuing implications in France, instead it is generally dealt with by a one-off compensatory payment. It is only upon receiving expert advice that one can ascertain which jurisdiction would apply and in some circumstances, which jurisdiction would be better.

With regards to proceedings concerning children, jurisdiction between England and France is now dealt with under the 1996 Hague Convention rather than EU Law. Again, the court looks at connection and is based on a child’s habitual residence. Parental responsibility is established under the laws of the country where the child is habitually resident. There is therefore very little scope for jurisdiction shopping.