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

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”.

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.

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.

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.

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.

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.

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

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.