Divorce: Why is Jurisdiction Important?

Because it impacts on the financial orders that can be made by the court.

If you want to issue divorce proceedings in England and Wales, to enable you to do so, the court must do jurisdiction.

To establish jurisdiction, the court must be satisfied that one of the following applies-

·  Both of you are habitually resident in England and Wales - this is the most common ground stated in divorce petitions.          

·  Your spouse, the respondent, is habitually resident in England and Wales.

·  You, and your spouse are domiciled in England and Wales.

·  You, as the petitioner, are habitually resident in England and Wales and you have resided here for at least 12 months prior to filing the petition.

·  You are domiciled and habitually resident in England and Wales, and you have resided here for at least 6 months immediately prior to the filing of the petition.

You may be able to issue divorce proceedings on the basis of sole domicile if no other grounds are available. Domicile and habitual residence are complex issues.

In the case of P v P [2019], the parties were born and married in Germany. On the date of separation, they were residing in Switzerland.

The wife moved to England where the parties owned a property in London. The wife claimed that she was domiciled and had been habitually resident in England for more than 6 months when she issued her petition. The husband contested the proceedings on the basis that the court had no jurisdiction, claiming that the wife had not been habitually resident for 6 months, and that she was domicile in Germany and not England. The husband had issued his own divorce proceedings in Germany. The judge found-

·  The wife had not been habitually resident for 6 months prior to the issue of the petition.

·  The wife was not domiciled in England, and her domicile remained Germany.  The judge in deciding the issue of domicile took into account the wife’s connection with Germany. She still voted there, she had her doctors there, her dentist, and even her beautician and florist.

The decision was important to the wife because if her petition could not proceed, then she could not apply for a financial order within the English divorce proceedings. The wife had signed a marriage contract before divorce, and as a result of German law, this contract would be upheld and the wife would only be entitled to her jewellery, notwithstanding that she had been married for over 32 years to a very wealthy man.

A petition based on sole domicile can impact on a financial order that the court can make. In the case of AJ v DM [2019], the judge held that the court had no jurisdiction to make a maintenance order in these circumstances. The court can only have jurisdiction to make a maintenance order when the claim is based on habitual residence. The term maintenance has been widely interpreted to mean that financial cases are based on entitlement not needs of the parties.

If the jurisdiction for issuing divorce proceedings is based on the domicile of one party, then this can impact on the financial orders that the Court can make. The court can only decide on the division of the assets that were acquired during the marriage. A wife is not entitled to claim maintenance or to ask the court to make a financial order based on her financial needs. 

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk