Until very recently, if divorcing couples had a choice of country from which to issue divorce proceedings, the decision as to which was the most appropriate country was often fraught with difficulties, not to mention costly. Couples seeking to divorce would typically receive specialist advice on the sort of settlement they could expect to receive in both countries. Difficulties arose when the couple both issued proceedings, and unless the choice of country was obvious or the settlement in each country was going to be roughly similar, a court would have to decide which country would handle the case.
Previously divorce proceedings could be issued in England if either the husband or wife was domiciled here when the proceedings began or if either party was habitually resident here for one year immediately before the proceedings began. In the UK "Habitual Residence" means ordinarily resident and "Domicile" is the relationship between a person and a state or country. Everyone has a "domicile of origin" acquired at birth which can be replaced by a "domicile of choice" if a you go to live in another country intending to stay there for an indefinite time, and don’t intend to return to live permanently in the country you’ve left.
However from March of this year the law was simplified in relation to Europe, or to be more accurate, in relation to Austria, Belgium, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the UK. These member states signed a new Convention on Recognition and Enforcement of Judgments in matrimonial matters and in relation to matters of parental responsibility for children of both spouses entitled "Brussels II".
It means that the English court now accepts a Petition filed for divorce under one of the following conditions: where the spouses are both habitually resident in England and Wales; where they were last habitually resident in England and Wales insofar as one of them still lives here; where the Respondent (the person responding to the proceedings) is habitually resident in England and Wales or if the Petitioner (the person initiating the proceedings for divorce) is habitually resident in England and Wales (meaning that he or she must have resided in England and Wales for at least one year immediately before the presentation of the Petition, or if the Petitioner is also domiciled in England or Wales, he or she must have resided here for at least six months before the presentation of the Petition). Finally if both spouses are domiciled and in England and Wales a Petition would be accepted by an English Court.
Two qualifications apply to the European countries but not the UK, namely if there is a joint application, habitual residence of one party will suffice. Furthermore, as an alternative to domicile if the Petitioner is a national of the member state and has been habitually residence there for at least six months.
If there is no jurisdiction to file a Petition based on one of the five situations above and there is no other country within the regulations that has jurisdiction then the domicile of one party in England or Wales is enough.
Say for example Mrs Smith was born here and met and married Mr Smith who is Italian. They live in Italy for 20 years, and then decided to move to Australia for 2 years as Mr Smith is offered a job there. They become habitually resident in Australia, the marriage then breaks down and Mrs Smith returns to England.
Proceedings cannot be issued from Italy because neither party is habitually resident there anymore, but can be issued from England by Mrs Smith after 6 months if she still has her domicile of origin here. Mr Smith can issue proceedings in England immediately (as Mrs Smith is the "Respondent") because his wife is habitually resident here and this may suit her if she wants to get things moving.
Mrs Smith of course could issue immediately even before she becomes habitually resident on her own domicile, but Mr Smith may be able to do the same in Italy (depending on the domestic laws there) and if that is the case then it is the first person to issue that counts. This is also the case if the two countries are both member states with jurisdiction.
Now, Under Brussels II, the country where proceedings have properly begun keeps the deal, so there is no argument as to which is the more appropriate jurisdiction. This means that couples now issue fast so as not to be pre-empted by their spouse and to gain a better financial deal.
The country that deals with the divorce will generally deal with issues surrounding the children if those children are habitually resident there. So if for example, Mrs Smith were to return to England with the children, as would be the most likely scenario, matters arising from the matrimonial breakdown such as contact between the children and their father would be dealt with by English courts.
Recognition and enforcement of these orders should be a lot simpler now. Unless challenged, and it is very difficult to do so, orders in matrimonial matters including those relating to the children are recognised automatically in the other member states. An application is made to the local court. The enforcement code applies only to child - related matters (recognition procedures are enough for matrimonial matters) and the procedure depends on the law in the particular member state.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
