Jurisdiction, Habitual Residence and Where to Divorce

In an international divorce, where you divorce can matter as much as how.

When a couple has connections to more than one country, one of the first and most important questions is which country’s courts should deal with the divorce. The answer can have a profound effect, especially on the financial outcome, because countries treat divorce and money very differently.

Our family solicitors advise on jurisdiction, the concepts of habitual residence and domicile, and the choice of the most appropriate forum. This is technically demanding work, and it often has to be handled quickly, so early advice is essential.

When can you divorce in England and Wales?

The courts of England and Wales can deal with a divorce only if certain connecting factors are present at the date of the application. These are based on two key ideas, habitual residence and domicile, and at least one of the following must apply:

• Both spouses are habitually resident in England and Wales.
• Both were last habitually resident here and one of them still lives here.
• The respondent is habitually resident here.
• The applicant is habitually resident here and has lived here for at least a year, or six months if also domiciled here.
• Both spouses are domiciled in England and Wales, or either spouse is domiciled here.

The last of these, based on the domicile of just one spouse, is a wide route into the English courts, and one reason England is an attractive forum for many international couples. We can tell you quickly whether any of these routes is open to you.

Habitual residence and domicile explained

Habitual residence is a practical, factual question. It is broadly the country where your life is genuinely centred, shown by where you live and work and where your family and social ties are. A person has only one habitual residence at a time, and it can be gained, or lost, more quickly than people expect.

Domicile is a distinctively English legal concept, and a more enduring one. In simple terms it is the country you regard as your permanent home and to which you intend ultimately to return. You acquire a domicile of origin at birth and can acquire a new domicile of choice, but domicile can be difficult to establish and to change. We help you work out your position on both.

Where more than one country could deal with the divorce

It is common for more than one country to have jurisdiction. Where that happens, the question becomes which is the appropriate forum, and the difference between them can be considerable, particularly on financial provision, speed and cost.

Since Brexit, the position with European countries has changed. There is no longer an automatic rule that the country where proceedings are issued first must take priority. Instead, the English court looks at which country has the closest connection to the couple and is the most appropriate place for the divorce, and it can stay English proceedings if another country is clearly more suitable. Being first to issue can still matter in practice, but it is no longer decisive.

Why timing and strategy matter

Because the choice of country can shape the whole outcome, these situations call for fast, careful strategy. Steps may need to be taken in a particular order, and in more than one country at once, and a decision made in haste can be difficult to undo.

We advise on the pros and cons of each available jurisdiction, work alongside lawyers in the other countries involved, and help you act decisively where timing is important, so you are in the strongest position from the outset.

Frequently asked questions

What is the difference between habitual residence and domicile?

Habitual residence is about where your life is currently centred, as a matter of fact. Domicile is a longer term legal concept, broadly the country you treat as your permanent home. You can be habitually resident in one country and domiciled in another, and both can be relevant to where you divorce. We help you establish your position on each.

My spouse and I could divorce in two different countries. Does it matter which?

It can matter a great deal. Countries differ widely in how they divide assets, deal with maintenance, and treat pre-marital and inherited wealth, as well as in speed and cost. Choosing the right forum is often the most important decision in an international divorce, and we can advise on the options before anything is issued.

Is it still a race to issue divorce proceedings first?

Not in the way it once was. Since Brexit, the strict rule that the first country to issue takes priority no longer applies to European cases. The English court now weighs which country is the most appropriate forum. Being first can still carry practical weight, so timing remains important, and we can advise on it quickly.