Jurisdiction

what is domicile certificate

Our service only relates to divorces that take place in the courts of England and Wales which, simply for simplicity, we shall refer to as “the English courts”. Therefore, before ordering our service, you will need to check that the English courts have jurisdiction to deal with your petition. If you are still unable to decide whether or not you are entitled to a divorce in the English courts after reading this section, we would be happy to advise you further via josiah-lake gardiner.

Undisputed jurisdiction

You should make sure your spouse agrees that the divorce can take place in the English courts. If your spouse disputes jurisdiction when your petition is served, we will not be able to continue with your case. If your spouse does not dispute jurisdiction, then the court is unlikely to raise any difficulty itself, unless there is an obvious problem with your petition.

Living in the UK

In a typical case (for instance, where both parties live in England or Wales and are domiciled here) there should be no problem with jurisdiction at all, and the English courts will definitely be able to process the divorce.

Living abroad

However, even if you and/or your spouse presently live abroad, you may still be able to issue a divorce petition in the English courts. It is not even necessary for you and/or your spouse to be physically present in England or Wales during the proceedings. In addition, it would not be necessary for either party to attend any court hearing, assuming there are no unusual complications. Therefore our service can be particularly useful for ex-pats, who may find it difficult and expensive to instruct an English solicitor in the traditional way, but who still need expert guidance throughout the divorce process whilst living in a foreign country.

Married abroad

Perhaps surprisingly, it does not even matter if you were married abroad. To get divorced through the English courts it is not legally necessary for your marriage to have taken place in England or Wales. Essentially, the only requirement is that your marriage was valid under the laws of the country in which it took place.

Non-UK Nationals

It does not even matter if you and/or your spouse are not UK nationals. You can still get divorced in England or Wales if you satisfy one of the jurisdiction tests, although those tests may be affected by the question of whether or not you are a national of an EU country.

Overseas Divorce Petition

Please note that we are not able to assist if a divorce petition has already been issued in another country, as this would create a jurisdiction dispute. In this instance, please contact josiah-lake gardiner for advice on how to proceed.

Habitual Residence and Domicile

In more complicated situations, you may need to prove either habitual residence or domicile in England or Wales on the part of you and/or your spouse. Therefore, you need to understand the definitions of habitual residence and domicile. It is usually preferable to rely upon habitual residence rather than domicile, if this is possible in the circumstances of your case. We explain the two definitions in more detail below.

Brussels II Revised

The issue of jurisdiction is governed by an EU Regulation, usually referred to as Brussels II revised. This regulation applies to all EU states except Denmark. The effect of the regulation is that the English courts will only have jurisdiction to deal with your petition in certain specific circumstances. If the facts of your case do not fit into one of these categories, you will not be able to issue a divorce petition through the English courts. Some of the clauses may seem inflexible or odd but, basically, most of them relate to habitual residence for specific periods of time. The Petitioner is the person who actually starts the divorce proceedings by issuing a petition (i.e. you if you order our service). The Respondent is the person who replies to the petition (i.e. your spouse).

The EU Regulation states that the English courts will only be able to deal with your petition if, and only if, one of the following descriptions applies to your circumstances:

1. Both the Petitioner and the Respondent are habitually resident in England or Wales

2. The Respondent is habitually resident in England or Wales

3. The Petitioner and the Respondent were last habitually resident in England or Wales and one of them continues to reside there

4. The Petitioner is habitually resident in England or Wales and has been so residing for at least one year immediately before the petition is issued

5. The Petitioner is domiciled in England or Wales and has been residing there for at least six months immediately before the petition is issued

6. The Petitioner and the Respondent are both domiciled in England or Wales

Or if (but only if) no court of an EU contracting state has jurisdiction under Brussels II revised;

7. The Petitioner or the Respondent is domiciled in England or Wales on the date when the petition is issued.

The member states of the EU which are presently bound by the regulation are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK.

What is “Habitual Residence”?

Habitual residence means that you live somewhere regularly. To establish habitual residence, case law shows that someone must be physically present in that country on a voluntary basis, for a settled purpose, and with a settled intention to remain there for a significant period of time. EU law on this point shows that one must focus on a person’s centre of interest. For the purposes of Brussels II revised a person can only have one habitual residence, although confusingly it may be possible to have different kinds of residence. Please find a few examples below.

Habitual Residence – Example 1

If you have lived in England all your life, or for some years, then clearly you are habitually resident in this country. If you visited another country for a

holiday, you would not become habitually resident in that country, even if the holiday lasted for several months - you would remain habitually resident in England.

Habitual Residence – Example 2

If a family moves abroad in connection with a family member’s temporary employment, then this may be enough to establish habitual residence in that other country, even if it is only for a period of a few months.

Habitual Residence – Example 3

A person can cease to be habitually resident in country A in a single day if he/she leaves with a settled intention not to return, and to take up long term residence in country B. However, that person would not become habitually resident in country B the same day. He/she would need to stay in country B for an appreciable period of time, with a settled intention to remain there, before becoming habitually resident.

Habitual Residence – Example 4

Habitual residence is not lost by temporary absences in a different country, provided that those absences are not inconsistent with habitual residence in England eg working abroad for short periods of time.

Habitual Residence – Example 5

A person’s presence in England or Wales need not be lawful under immigration laws to establish habitual residence here. However, if a person’s presence in the UK is unlawful, then this might be relevant to the factual question of whether or not habitual residence has actually been established.

Establishment of Habitual Residence

Establishment of habitual residence for general purposes does not in itself depend upon a specific period of time, but instead upon how firm it is. However, the EU Regulation does require habitual residence for specific periods of time in some circumstances to give the court jurisdiction to deal with a divorce petition.

Determining Habitual Residence

Important factors that are often taken into consideration in deciding whether habitual residence has been established include the following:

1. Where does a party usually/always live, work, study, and/or enjoy leisure time?

2. If a party moves out of England or Wales, is this move only temporary?

3. Does a party intend to move his/her centre of affairs to another country?

4. Where has a party retained his/her properties and furniture, even if rented out?

5. Where is a party's car registered?

6. Where is a party's mailing address?

7. Where is a party registered with doctors etc?

8. Does a party have English or foreign mobile phones?

9. Where is the centre for financial arrangements - such as bank accounts, financial advice, tax status, NI contributions etc?

10. What is a party’s nationality?

What is “Domicile”?

Domicile is, unfortunately, even more difficult to define and explain as a legal concept than habitual residence. In short, a country of domicile is the country where a person has his/her closest ties.

How is Domicile determined?

Domicile is fixed in the country where a person has decided voluntarily to live, with the intention of making that country his/her permanent home, unless or until something unexpected or uncertain happens to persuade him/her to adopt some other country as a permanent home.

Domicile of Origin or Choice

An adult can only have one domicile at a time – either a domicile of origin or a domicile of choice (although a child can have a domicile of dependency based on the parents' domicile).

Domicile of Origin

A domicile of origin is the domicile which everyone acquires automatically at birth. It is usually the country in which their father is domiciled at the date of birth. For most people, the domicile of origin will be the country in which they were born. However the rules can become more complicated, and if your situation falls into this category we suggest you seek further advice from josiah-lake gardiner .

Suspended Domicile of Origin

A domicile of origin is never lost completely. It is, however, suspended if someone acquires a domicile of choice in a different country. It revives to fill any gap created if a domicile of choice ends, so long as it is not replaced by another domicile of choice.

Domicile of Choice

A domicile of choice arises when a person resides in a different country from their domicile of origin and intends to make that new country his/her home permanently, unless or until something happens to make him/her change their mind. Therefore, a person’s domicile of origin is replaced by a domicile of choice when he/she goes to live permanently in another country, with the intention of staying there unless something unforeseen occurs.

Hence, if your domicile of origin is either England or Wales, it will continue to be England or Wales even if you live abroad, unless you adopt another country as your domicile of choice.

Determining Domicile

Important factors that are often taken into consideration by the English courts in determining a person’s domicile include the answers given to the following questions:

1. Where does a party permanently live, work, study, and/or enjoy leisure time?

2. If a party moves out of England or Wales, is any such move temporary or permanent?

3. Does a party intend to move his/her centre of affairs permanently to another country?

4. Where has a party retained his/her properties and furniture, even if rented out?

5. Where is a party's car registered?

6. Where is a party's mailing address?

7. Where is a party registered with doctors etc?

8. Does a party have English or foreign mobile phones?

9. Where is the centre for financial arrangements such as bank accounts, financial advice, tax status, NI contributions etc?

10. What is a party’s nationality?

It is possible for a party to be domiciled in one country, but habitually resident in another country. The issue of domicile and habitual residence is a question of fact to be decided in the circumstances of each situation. In a disputed case, the English courts would look at all relevant evidence before making a ruling. You will see that the criteria for establishing domicile and habitual residence can be very similar.

Source: www.justdivorce.co.uk

Category: Insurance

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