What is the jurisdictional test?
To issue a divorce in England, you must satisfy a jurisdictional test as an initial hurdle. This is usually based on one or both parties’ Habitual Residence or else their Domicile. In an international divorce, this can be more complicated for people who are foreign nationals or who have spent time or continue to spend time living abroad.
What is Habitual Residence?
Without sprouting too much legal jargon, a person’s Habitual Residence can be defined as “the place where the person has established on a fixed basis the permanent or habitual centre of his or her interests”. In other words, the location where one or both parties have been living as their base for a significant period of time regardless of nationality, residence, or domicile. In most circumstances, this will be England but may differ in an international divorce.
What is Domicile?
If Habitual Residence is not applicable, a party may often fall back on Domicile in order to satisfy the court’s jurisdictional requirements. Domicile can be a tricky and nuanced concept divided in to two categories. The first is the relatively simple Domicile of Origin. One’s Domicile of Origin is acquired on birth. When born, a child’s Domicile of Origin is the Domicile of his father if his parents are married, or his mother if they are not.
The second is the more complex Domicile of Choice. A Domicile of Choice can supersede one’s Domicile of Origin and can change multiple times. There is significant case law on this but I believe it can be accurately summarised as: (i) will one be permanently residing in that country; and (ii) how will that person be able to permanently reside in that country. Important factors to consider will be property ownership, income capacity, ability to remain indefinitely in employment, retirement options including pensions, visa restrictions etc. For instance, it does not appear possible to change one’s Domicile of Choice to certain Middle Eastern & Gulf states due to visa’s being linked to active employment.
Why is this important?
When an international divorce petition is issued on the basis of Habitual Residence in England, it allows all financial claims in respect of income (maintenance), capital (property, savings, and other assets), and pensions. Financial claims would proceed as a standard case.
If Habitual Residence cannot be satisfied, the parties must rely upon one of the other gateways for England to claim jurisdiction over the divorce and any ancillary financial claim. When the petitioner issues an international divorce solely on the basis of Domicile (known as residual jurisdiction), it significantly limits the financial claims a party can make. Re. AJ v DM  is the leading authority on this situation concerning jurisdiction and locus for financial remedy proceedings.
In this case, the wife relied solely upon her Domicile of Origin being England (i.e. a sole Domicile petition). The husband was Irish and living in Saint Lucia with the wife and their children. Thus, the husband was not Habitually Resident or Domiciled in England. However, the wife’s application on this basis limited her financial claims. Most importantly, she could not make a spousal maintenance application. The court solely held jurisdiction to address capital claims. The marriage was income focused with a small asset base meaning the thrust of the wife’s application would be a needs-based income claim. Given the inability to obtain a spousal maintenance order, her application was meritless.
This case also addressed the wife’s application to amend the divorce petition’s jurisdictional basis to that of her being Habitually Resident in England at the time of the divorce petition being issued. This would have opened up her maintenance claims. However, it was rejected by the court. It was held the wife was Habitually Resident in Saint Lucia despite living in England when the divorce petition was issued.
This shows the importance of assessing jurisdiction at an early stage, as ill-thought out applications can achieve an international divorce but impose significant limitations later in ancillary financial claims.
Will Brexit have an effect on this?
On a tentative basis, yes. Like most things with Brexit, it is difficult to know at this point with what seems like daily changes.
The law limiting spousal maintenance applications in the above circumstances stems from EU law. Therefore, should England leave the EU without matching legislation, which appears likely as it does not form part of the current Brexit negotiations, the limitation could be removed. However, there may yet be a further spanner in the works. England is subject to the 2007 Hague convention which separately prohibits maintenance applications based upon sole domicile. This would certainly require in-depth consideration as to which states the maintenance order could be enforced in.
If you would like to talk to a specialist family law solicitor about any of the issues raised in this blog, please contact us.