International Families: What has habitual residence got to do with divorce and separation?

Cross-border relationships are ordinary now, and so are the questions that follow when one ends. Before any court can rule on a divorce, a financial settlement, or where a child should live, it has to be satisfied that the case belongs to it at all.

It is not unusual for people with different birth Nationalities to form relationships or have children together. But in some cases, that can lead to confusion on which court has the power and authority to make decisions when a relationship ends.

The key to finding the correct answer often lies with the legal concept of “habitual residence”.

A related term, domicile, sits alongside it and works quite differently. Both are explained below, together with what happens when two countries each claim the right to hear a case.

How to determine habitual residence

There is no set test to determine habitual residence but it is largely defined by the country in which you are settled, have set down roots and (in most cases) live on a daily basis. It is not necessary for you to have any legal status in such a country and it may be that you lived in the place of your habitual residence without the appropriate immigration permission or on a time-limited or spousal visa.

Your habitual residence is personal to you and is not connected to your place of birth, your extended family or your spouses’ family. It is also not time limited or time-acquired – you can gain habitual or lose your habitual residence in a single day in some cases and it is even possible to have no habitual residence at all, although this is rare.

Judges assess the substance of daily life rather than paperwork. Points typically weighed include:

• Where you sleep on the majority of nights across a year.
• Where you work, run a business, or pay tax.
• Which schools or nurseries any children attend.
• Where your GP, dentist, bank, and social circle are based.
• How far your life has become integrated there, considered alongside how long you have been present.

Owning property or visiting relatives builds little connection by itself. What counts is whether the centre of your day-to-day existence sits in one place, and that question is decided separately for each partner – couples who have been living apart may well be treated as belonging to different countries.

Evidence matters when the position is contested. Tenancy agreements, payslips, utility bills, school records, medical registrations, and travel history all help to demonstrate where life is genuinely based.

How does domicile differ from habitual residence?

Domicile describes your permanent home – the country you regard as yours in the long run and expect to return to, even if you happen to live elsewhere at present. Habitual residence looks outward at how life is being lived today, whereas this concept looks inward at where somebody ultimately belongs.

Three varieties exist:

• Domicile of origin: acquired automatically at birth, taken from the father’s domicile at that date, or the mother’s where the parents were unmarried or the father had died.
• Domicile of choice: gained by settling permanently in another country with the intention of staying indefinitely.
• Domicile of dependency: applies to children under sixteen, whose position follows the parent they depend upon.

Nobody ever loses an original domicile outright; it is merely suspended while a chosen one operates, and revives the moment that choice is abandoned without a replacement. People mid-move between countries are caught by this regularly.

Establishing a domicile of choice takes considerably more than relocating. Courts look for property purchases, business interests, citizenship applications, testamentary and burial wishes, and the severing of accounts or memberships left behind. Any residual plan to go home one day tends to defeat the argument.

Nationality is a separate matter again. A British citizen may be domiciled in Singapore, and a Spanish national may be domiciled in England.

So how does this apply in practice?

Divorce/Civil Partnership Dissolution

If you and your spouse are both habitually resident in England and Wales, you should apply to the court here to consider your application for a divorce/dissolution. It does not matter where you got married, or if one or neither of you are British Citizens. An overseas marriage is automatically recognised in England and Wales provided the marriage was conducted in accordance with the laws of the country/region in which the ceremony took place. It is however necessary for you to submit the original marriage certificate to the court, and if that is written in a language other than English, you will need to translate the certificate before making your application for a divorce/dissolution.

You may also apply to the court in England and Wales if the Respondent to the divorce/dissolution is habitually resident here, even if you are not. In that case, it may be that you could apply to the courts of the country in which you are habitually resident as well, so you would need to consider which is the preferred option in your case. You cannot apply to more than one court and once your application is accepted by a court, it will “seize” jurisdiction of the case including related matters such as the division of property or money.

Those two routes are the most common, though several others exist. Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973 confers authority where:

• Both parties are habitually resident here.
• Both were last habitually resident here as a couple and one still lives here.
• The respondent is habitually resident here.
• The applicant is habitually resident here and has been for at least twelve months.
• The applicant is domiciled and habitually resident here, having lived here for at least six months.
• Both parties are domiciled here.
• Either party alone is domiciled here.

Satisfying any single one of these is sufficient. That final ground was introduced when the European framework stopped applying at the end of 2020, and it helps many people who have spent years overseas while retaining a permanent connection with this country. Equivalent provision covers civil partnership dissolution under the Civil Partnership Act 2004.

Bear in mind, too, that Scotland and Northern Ireland run their own systems. Somebody based in Glasgow cannot bring proceedings in London merely because both cities lie within the United Kingdom.

Financial claims after a divorce obtained abroad

Ending a marriage overseas does not necessarily shut off relief here. Part III of the Matrimonial and Family Proceedings Act 1984 permits an application for financial provision following a foreign divorce, provided the court grants permission and a sufficient link with England and Wales exists – normally domicile or habitual residence for one of the parties.

Applications of this kind assist people left inadequately provided for by an overseas settlement, particularly where a substantial asset such as the family home sits in this country. The foreign decree must first be recognised as valid, which sections 44 to 54 of the Family Law Act 1986 govern.

Children matters

Children have their own status of habitual residence and it is not necessarily the case that this will follow their parents’ habitual residence. Again, it will come down to the individual circumstances of the case. If it becomes necessary to apply to the court for orders concerning a child, unlike divorce or dissolution proceedings, it is not possible to choose the court based on the applicant’s preference. The only court that can make orders regarding a child is the court of the country/region in which the child is habitually resident. If that is in England and Wales, you will also need to apply to the court closest geographically to the child.

Supreme Court authority frames the test as the degree of integration into a social and family environment, a formulation drawn from A v A [2013] and developed in Re B [2016]. Nursery attendance, friendships, language, and relationships with wider family all feed into the picture. An infant’s position frequently mirrors that of the primary carer, while an older child who has built a settled life abroad may belong somewhere neither parent does.

Where the child’s habitual residence is not clear or where there is a dispute over the location of the child’s habitual residence, it may be necessary for the court to make a detailed assessment of that issue, before deciding whether it has jurisdiction to make substantive orders concerning the child. In that case, the court first seized (i.e. the court that first receives an application) will make an assessment and decide whether they can take the case further.

If the court decides that, based on the facts of the case, the child is not habitually resident in that country, it must conclude that it does not have jurisdiction to make the orders applied for and dismiss the application. At that stage, the court may also direct the applicant to make the application in the country in which it appears the child is habitually resident. However, the second court will still need to conduct its own assessment to ensure that the child is indeed habitually resident there before continuing with the case.

Similar principles operate under the 1996 Hague Convention, which allocates responsibility for child protection measures between contracting states and provides for orders made in one to be recognised and enforced in another. Wrongful removal or retention engages the 1980 Hague Convention instead, where the same connecting factor determines the country a child should be returned to so that welfare decisions can be taken there.

What if there is a disagreement between the courts?

For courts of EU Member States, there is a set procedure which each court must follow when receiving an application that has an international element. This procedure is set out in Council Regulation 2201/2003 (also known as Brussels II Revised). Generally speaking, any dispute over which court should hear the case can be resolved by applying the terms of the Council Regulation, and the Judge’s are generally respectful of another Member States’ jurisdiction.

However, in the recent case of GM v KZ (No 2) [2018] EWFC 6, in which Amy Trevellick of GoodLaw Solicitors acted, the Family Court at the Royal Courts of Justice in London disagreed with the District Court in Lodz, Poland, as to their conclusion that the children were habitually resident in Poland. In that case, there were also issues raised as to whether the Polish court was ever properly seized of the case given procedural irregularities which meant that the father was not served with a copy of the mother’s application. He subsequently made his own application to the court in England, resulting in opposing decisions between the two Member States.

That reciprocal framework no longer binds courts in England and Wales, having ceased to apply here on 31 December 2020. Where competing proceedings now run in an EU country, the automatic priority rule has gone, and judges here may instead stay a case if another forum is clearly the more appropriate one – weighing where assets are held, where the marriage was based, and where evidence and witnesses can be found.

Timing nevertheless remains critical, because a court abroad may still apply its own strict rule to whichever application landed first. Outcomes differ sharply between systems on maintenance, pension sharing, inherited wealth, and the treatment of nuptial agreements, so the venue often shapes the financial result more than any argument advanced later.

You can read more about that particular case here:

• https://www.bailii.org/ew/cases/EWFC/HCJ/2017/73.html
• https://www.bailii.org/ew/cases/EWFC/HCJ/2018/6.html

Misunderstandings that cause difficulty

A few assumptions crop up repeatedly and lead people down the wrong path:

• “Habitual residence and domicile mean the same thing.” They frequently point to different countries for the same person.
• “Buying a house here settles the question.” Ownership carries little weight without a life built around it.
• “We can choose whichever country suits us.” Grounds have to be genuinely satisfied, and the other party may well dispute them.
• “Moving abroad ends my English domicile.” Only once a new permanent home replaces it.

Steps worth taking early

Where circumstances span more than one country, preparation before anything is issued makes a material difference:

• Seek advice promptly, since delay can hand the advantage to whoever applies first.
• Collect documents evidencing where daily life takes place.
• Locate the original marriage certificate, with a translation if it was issued in another language.
• Pause before relocating with a child during mid-dispute, as a move may change your position or a child’s.

If you are concerned or unclear about which court may be able to make decisions in your case (whether divorce, dissolution or children related), feel free to contact GoodLaw Solicitors on 01273 956270 who will be happy to help with your enquiry. We are members of the Reunite specialist family lawyers listing in Sussex and have experience in dealing with cases with jurisdictional and international aspects.

We can also offer a free 30-minute consultation in qualifying circumstances.