The English courts can only make orders if you establish jurisdiction or register a foreign order in this country. Establishing jurisdiction is often overlooked but is an important concept to understand and demonstrate correctly.
Issues about habitual residence and domicile are seen in divorce, children and financial court proceedings. For example, whether you can divorce in England will depend on where you are domiciled and what your habitual residence is.
To be allowed to obtain a divorce in England (and therefore obtain financial relief thereafter) you need to meet one of the following criteria:
- Both you and your spouse are habitually resident in England or Wales;
- The person receiving the divorce petition is habitually resident in England or Wales;
- You were last habitually resident as a couple in England or Wales, and one of you still lives there;
- You are habitually resident in England or Wales and have been for 12 months;
- You are domiciled in England or Wales and have been habitually resident for six months; or
- You are both domiciled in England or Wales.
To be ‘habitually resident’ in England or Wales you must be able to demonstrate that your ‘centre of interest’ is there. This is usually demonstrated by where you primarily live, what links you have to the country and perhaps where your children go to school etc. There is no defining feature of ‘habitual residence’ but to most it is the country where you spend most of your time and have most roots put down.
Domicile is more technical legal term. Your ‘domicile of origin’ is the country in which your father was born. For example, if you were born in the USA but your father was English and lived in England most of his life, your ‘domicile of origin’ will be England. You can change your ‘domicile of origin’ to a ‘domicile of choice’. To do this you would need to permanently move to a country and sever all ties with your ‘domicile of origin’.
The legal rules in relation to jurisdiction can be complex and it is therefore important to seek legal advice sooner rather than later if you think there is any question mark over whether the English court have jurisdiction.
If you or someone you know is experiencing difficulties in this area, it is important to seek legal advice as soon as possible. Please do not hesitate to get in touch if you would like to find out more about how we can assist you.