Divorce - Jurisdiction and Procedure
By Rebecca Fairbairn
An article setting out the procedure for obtaining an English divorce and the rules to be applied in cases with competing jurisdictions, including Brussels II and non-European countries.March 11, 2014
1. The 1857 Matrimonial Causes Act gave ordinary people the right to divorce. Before then the only way of obtaining a divorce was by grant of an Act of Parliament, meaning that it was hugely costly and largely only available to men. Under the 1857 Act, a woman petitioning on the basis of her husband’s adultery had to prove not only that he had been unfaithful but that additional faults were present such as rape and incest. By 1923 a private member’s bill meant that women had only to prove their husband’s infidelity. In 1937 the additional grounds of drunkenness, insanity and desertion were added. The Divorce Reform Act 1969 brought about significant change and ended the necessity of the petition to prove “fault”. The sole ground for divorce was that the marriage had irretrievably broken down, and the breakdown was to be inferred on the proof of one or more of the certain facts. It also enabled couples to divorce on the basis of two years separation, or five years where only one party wanted to divorce.
2. Section 1(1) of the Matrimonial Causes Act 1973 provides that either party may petition on the basis that the marriage has irretrievably broken down, on the proviso that the Court is satisfied of one of the five “facts” in section 1(2) namely;
3. Parties cannot petition for divorce until at least one year from the date of their marriage.
4. In 1977 the “special procedure” for undefended cases was introduced and paved the way for the on-paper method that is used in the vast majority of modern day divorces. LJ Waite explained the procedure in Pounds v Pounds (1994) 1 FLR 776 CA: “Following presentation of the petition, the petitioner's solicitor lodges an application for directions for trial together with a standard affidavit in the form required to verify the particular ground alleged in the petition. In routine cases (i.e., where no problem of costs or of approving arrangements for the children arises) the registrar gives directions for trial by entering the cause in the special procedure list and thereafter considers the evidence filed by the petitioner. If he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to the decree sought and any costs prayed for, he will make and file a certificate to that effect. The court then sends notification to the parties of the date, time and place fixed for the pronouncement of the decree nisi. The parties are also told that their attendance at the pronouncement of decree is not necessary. The actual process of pronouncement of the decree has become reduced to a very brief ceremony of a purely formal character in which decrees are listed together in batches for a collective mention in open court before a judge who speaks or nods his assent. The right to a decree absolute six weeks thereafter is automatic, on the application of either party. …..The procedures for dissolution of marriage on unopposed petitions in England have thus become truncated over the years to the point that the sole truly judicial function in the entire process is that of the registrar when granting his certificate. Everything that follows is automatic and administrative, and the open court pronouncement of the decree is a pure formality, to which the pronouncing judge (who under current procedures may himself be a district judge) has no option but to consent.”
5. A party seeking the divorce must complete the petition (Form D008) and the statement of arrangements for children form and lodge this with the County Court. A fee will be payable, currently £410, although this may be reduced if the petitioner is on benefits or a particularly low income. Within a few days the Court will send a copy of the petition and statement of arrangements for children to the other spouse and to any other person who has been named in a petition based on adultery. If the respondent consents to the divorce he has 8 days within which to complete the acknowledgement of service form. If he disagrees with the divorce he will indicate within the form that he intends to defend the petition, within 21 days he will have to explain why he is defending the divorce. If he does not respond within 21 days or he will be deemed to have consented.
6. Upon receiving a petition the respondent may file his own petition. If both parties file divorce petitions or where one party defends the petition, then absent agreement, the Court will need to determine the facts. Nowadays a contested or defended divorce is a rarity.
7. Upon receiving the acknowledgement of service and if not defended, the petitioner can apply for Decree Nisi under the “special procedure.” In the event that the respondent has not responded to the acknowledgement, the petitioner will need to prove that it has been served on the petitioner, although in some circumstances the court can dispense with the need for service altogether.
8. Provided that the necessary paperwork is in order, the District Judge will fix a date for pronouncement of the decree, normally six to eight weeks later. Neither party need attend the pronouncement. Six weeks after the pronouncement the petitioner may apply for the final decree, Decree Absolute. If the petitioner does not apply, the respondent may apply for Decree Absolute from three months after the date by which the petitioner could apply.
9. The Civil Partnership Act 2004 afforded the right to same sex couples to register and in turn dissolve their civil partnerships. The dissolution of a civil partnership is permitted on broadly the same grounds as for divorce, except that the adultery ground is not available due to problems applying the accepted legal definition of the act of adultery to same sex couples.
10. In the same way that practitioners choose to apply to a particular court because it is known to be more advantageous, the same is often the case where there are competing jurisdictions and where the outcomes can be very different. Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) places a duty on parties to disclose whether they are aware of proceedings continuing in another jurisdiction. Historically, in determining cases with a foreign jurisdiction element, the English Courts considered whether the case had a close connection with England. If it subsequently appeared that a closer connection existed with another jurisdiction it would stay proceedings on the principle of forum non conveniens (“more convenient forum”) and the matter would be heard in the other jurisdiction. Where the English court was seised of jurisdiction it would apply English law.
Within Europe- Brussels II
11. Until 2001 proceedings between England and other EU countries were dealt with by reference to discretionary stay law. Brussels II (Council Regulation (EC) No 1347/2000) (BII) came into force on 1st March 2001 “concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.” The most significant elements of Brussels II were the unification of divorce procedure EU-wide and clear definition of which jurisdiction applied, and Article 19, the “first past the post provision,” which allowed the first party to issue proceedings to secure priority, irrespective of the strength of connection with that country.
12. BII Article 3 provides the jurisdiction for divorce and other marital proceedings throughout the EU. “In matters relating to divorce, legal separation and marriage annulment, jurisdiction shall lie with the courts of the Member State :
- (a) in whose territory
- -the spouses are habitually resident, or
- -the spouses were last habitually resident, insofar as one of them still resides there, or
- -the respondent is habitually resident, or
- -in the event of a joint application, either of the spouses is habitually resident, or
- -the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- -the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his “domicile” there;
- (b) of nationality of both spouses or, in the case of the UK and Ireland, of the “domicile” of both spouses.
13. Article 3(1)(a) and (b) of Brussels II defines when the English Courts have jurisdiction to hear a divorce (or nullity or judicial separation) petition, provided:
- (a) the spouses are habitually resident in England and Wales
- (b) the spouses were last habitually resident in England and Wales and one of them still resides there
- (c) the respondent is habitually resident in England and Wales
- (d) the petitioner is habitually resident in England and Wales and has resided here for 6 months and is domiciled in England and Wales
- (e) both parties are domiciled in England and Wales
Or, if no EU state (except Denmark) has jurisdiction under Brussels II, on the sole domicile of one party. This final additional and residual ground will only apply when no other EU state has jurisdiction in accordance with Article 3. Whereas England and Wales and the Republic of Ireland have used sole domicile without any residential criterion, the majority of EU states however have used sole nationality without any residential criterion. This additional ground will not be applicable if any of the Article 3 grounds exist, even if no member state has jurisdiction. In a petition it is important to specify whether jurisdiction is claimed under an Article 3 ground or under the residual ground.
14. There is no power to agree or confer divorce jurisdiction under Brussels II whereas under Brussels II the parties can agree jurisdiction for maintenance. Thus any agreement in a pre-nuptial or separation agreement as to divorce jurisdiction is irrelevant and unenforceable. It is therefore wise in separation agreement cases with an EU element to move immediately to divorce to prevent the possibility of one party issuing in another jurisdiction and the Court in that jurisdiction not upholding the separation agreement. Further, there is no power to transfer divorce proceedings to a jurisdiction with a close connection, as exist in relation to children matters.
Habitual Residence and Domicile
Residence and Habitual Residence
15. Article 3 of Brussels II refers to both “residency” and “habitual residency” and the two are not the same. It is possible to have habitual residency in one country whilst actually being present in another. There has been considerable dispute between the English definition of residency and that within BII. ECJ jurisprudence has upheld the definition given by Professor Alegria Boras on Brussels II as “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence”. Thus for the purposes of BII habitual residence has its own meaning, which is the same throughout the EU.
16. Prior to BII spouses were able to petition on the sole ground of their, or the Respondent’s, sole domicile unsupported by residence. An English spouse could immediately acquire jurisdiction simply by returning to England and petitioning. The English courts gave residence its ordinary and plain meaning; in common law a person was habitually resident where they lived, not where they might be for a temporary period such as a holiday or for medical treatment. For example, a member of the armed forces would be habitually resident where they actually live, rather than where their regiment is based in their home country. Equally, a person with no immigration status in the UK may still be habitually resident here for the purposes of applying for a divorce. BII introduced minimum periods of residency of either 6 or 12 months. Whereas before, a returning spouse could immediately petition for divorce on their return to England, would they now have to actually reside in England for 6 months before they could petition? Assistance came in Marinos v Marinos (2007) EWHC 2047 (Fam) from LJ Munby who, in finding no ECJ decision on point, instead reviewed authorities in other areas. In that case, the wife was English and the husband Greek. They had two children in England but subsequently moved to Greece and let out their English properties. Five years after the move the wife returned to England and immediately petitioned for divorce. The issue was whether she was able to acquire immediate habitual residence on her arrival. Munby LJ found that the wife did have habitual residence in England based on a number of factors. The wife retained a room at her parents’ address, she studied law part time in England, she worked as cabin crew for BA and regularly flew to England as part of her work, she retained an English GP and dentist and received medical treatment here and her financial affairs were based in England. Although she spent marginally more time in Greece than in England, Munby LJ decided that the centre of gravity of her life was in England. He held that two factors must exist; habitual residence on a particular day, and residency, although not necessarily habitual residency, during the relevant period. Thus a petitioner must not only consider the amount of time spent in a particular place, but also the quality and value of a person’s connections to a place.
17. In Re A (Jurisdiction: Return of Child) (2013) UKSC 60 the Supreme Court considered the concept of habitual residence in the context of child abduction and Wardship proceedings. In that case the mother, a Pakistani national with leave to remain, the husband and three eldest of the four children, had dual Pakistani and British citizenship. The family was habitually resident in the UK. It was an arranged marriage and in 2008 the Mother fled to a refuge with the children, alleging domestic violence. In 2009 on a visit to Pakistan she was coerced into resuming the relationship and in 2010 their fourth child was born, who also had dual citizenship. The mother wished to return to England with her children but was prevented by the father who held all their passports. In 2011 the mother escaped to England without the children. She made a Wardship application and Jackson J made all children Wards of Court and ordered their return by the father. An asset-freezing order was also made against property held by the husband in England in order to provide potential funding for the mother in the event of litigation in Pakistan. The father challenged the court’s jurisdiction. J Parker held that all four children were habitually resident in England. The Court of Appeal upheld that the eldest three children were habitually resident in England but considered it would be “divorced of reality” to suggest that the youngest child who had never been to England could be habitually resident there. The mother was granted leave to appeal to the Supreme Court. The Court held albeit obiter that there was a single test for habitual residence, which was set out in DL v EL by Sir Peter Singer: “the place which reflects some degree of integration by the child in a social and family environment.” The habitual residence is a question of fact in each case. One of the grounds of appeal was that the habitual residence of the child could be determined by reference to his nationality. Although the Supreme Court did not uphold the appeal on this ground, the Justices agreed that, had the child not been habitually resident in England, jurisdiction would have been engaged based on the child’s nationality. The matter has been referred back to Parker J for urgent determination on this point. In the event that Parker J finds that nationality jurisdiction should not be exercised, the Supreme Court gave liberty to apply to the Court of Justice of the European Union on this point. Whilst this is a Wardship case, the guidance on habitual residence is likely to develop particular importance within the context of jurisdiction on divorce, especially if Parker J determines the nationality based jurisdiction point in the mother’s favour. What is clear is that whilst habitual residence is autonomous throughout the EU, there is no single legal definition within the context of divorce proceedings and dispute will be determined by reference to the facts of the case.
18. In contrast to habitual residence, the Regulation expressly states that “domicile” is to have the same meaning as in English law. BII uses joint nationality as a ground for jurisdiction in all EU countries and it is only in England and Ireland where domicile is used. Domicile is the link between a person, a territory and its legal system and is acquired at birth from the parents. Domicile of origin remains until another domicile is chosen and the domicile of origin is abandoned. People seeking to change their domicile must prove it by demonstrating the change in their actions, attitudes and commitments. The definition of domicile in England is very different to that in civil jurisdictions, where domicile normally applies to where a person habitually resides. It is also much easier to change domicile in such jurisdictions. However this difference could lead to problems where a person might be domiciled in two jurisdictions at the same time. The FLA 1986 section 46(5) states that an individual: “shall be treated as domiciled in a country if he was domiciled in that country according to: (i) the law of that country in family matters or (ii) the law of that part of the United Kingdom to which the question of recognition applies. A person’s domicile may have considerable tax implications, so it is important to obtain specific advice in this area before advising a client to petition on the basis of their domicile, when another ground would be open to them.
19. There are two types of stay, mandatory and discretionary. An application for mandatory stay can be made to a District Judge who can deal with it himself or can transfer to the High Court (FPR r 2.27(1). It is not necessary to file an affidavit at first instance, although it is good practice and the Judge may well order it. Applications for discretionary stays must be made to a Judge (FPR r.2.27(2)).
Within Europe : BII
First past the Post: Article 19
20. Article 19 states: “where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before the courts of different Member States, the court second seised shall of its own motion stay its proceedings until such times as the jurisdiction of the court first seised is established”. So if two or more EU countries have jurisdiction, the court first seised of the matter will have jurisdiction “lis pendens" and all later courts must stay the proceedings. The court seised of the matter will decide if they have jurisdiction and the later courts cannot interfere with that decision. Article 5 provides jurisdiction to convert a judicial separation to divorce but this is an additional ground to those within Article 3. Thus if a divorce has been recognised in one country then no further divorce can be commenced elsewhere. However, a recognised judicial separation will not prevent a divorce elsewhere, for example where the couple have since moved away from that country and have no connection with it. The purpose of BII was to simplify forum disputes not by reference to the principle of forum conveniens but lis pendens. However this can cause injustice where one jurisdiction is more closely connected or where effect will not be given to a marital agreement. BII only applies to the divorce suit and not ancillary matters which are dealt with under BI, although since ancillary proceedings fall within the ambit of the divorce jurisdiction, securing of jurisdiction is of critical importance.
21. Where a mandatory stay is granted the other court can still make provisional and protective measures. (Article 20). In Moses-Taiga (2006) 1 FLR 1074 it was held that the power to order maintenance pending suit was exercisable even though the divorce jurisdiction was subject to challenge. In LK v K (BII revised: maintenance pending suit)(2006) 2 FLR 1113 Singer J held that maintenance pending suit to cover an element to provide for the wife’s legal costs was appropriate when the issue of jurisdiction was still to be determined. This was a case where it was likely that England would have had jurisdiction in any event. Further, BII does not cover maintenance obligations which are dealt with by BI.
22. In order to secure jurisdiction the petition must be issued and service commenced. The procedure for service is set out in the EU Service Regulation 1348/2000 which provides that Member States must set up organisations that can transmit documents and effect good and expeditious service. The receiving state must acknowledge the request for service within 7 days of receipt and local service effected as soon as practicable. Once service is effected, a certificate in prescribed form is sent to the requesting state. In England the Transmitting Agency is through the Senior Master QBD, Room E10 of the Royal Courts of Justice. Although it is possible to serve directly, it is safer to use the Transmitting Agency, as every country has its own procedure.
23. Chapter 3 and Part 5 of the Civil Partnership Act 2004 and the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 (SI 2005/3334) are modelled on Brussels II. However, there is an additional ground from those contained within Article 3, namely that the civil partnership was registered in England and Wales and “it appears to the Court to be in the interests of justice to assume jurisdiction.” The logic for this additional ground is clear; couples who have moved from another country and registered their partnership here, and then moved to a country where civil partnerships are not recognized, could not be released from their English civil partnership without this provision.
Within the UK
24. Paragraph 8 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 provides for mandatory stays in proceedings where proceedings are concurrent elsewhere in the British Isles. Although Brussels II applies to the three UK jurisdictions (England and Wales, including the Channel Islands and the Isle of Man, Scotland and Northern Ireland) if two or more territories have jurisdiction the rules for mandatory stay apply. An English Court must stay divorce proceedings if there are already proceedings underway in a related jurisdiction provided that (DMPA 1973 Schedule 1, para 3(2)
- (a) the parties to the marriage have lived together after the celebration
- (b) the parties last lived together in the jurisdiction where the first in time proceedings started
- (c) one of the parties was habitually resident in that jurisdiction for 12 months before the proceedings were issued.
The use of the word trial is used in respect of the divorce suit and does not refer to children or ancillary relief applications. A Court can discharge a mandatory stay pursuant to paragraph 8 if the other proceedings are “stayed or concluded or that a party to the other proceedings has delayed unreasonably in prosecuting them” (DPMA Schedule 1 para 10(1). When proceedings have been stayed once, they cannot be stayed again under this paragraph. Instead, any further application would be for discretionary stay under paragraph 9. In doing so it would be dealt with in the same manner as where there are competing non-EU jurisdictions and the form convenient rule. Where English proceedings are stayed any ancillary relief orders in existence cease to have effect three months from the imposition of the stay. A mandatory stay will apply to civil partnerships for other jurisdictions within the British Isles (not the Republic of Ireland) and also Scotland and Northern Ireland as Brussels II does not apply (rule 3).
25. Paragraph 9 to Schedule 1 to the DMPA enshrines the common law doctrine that where there are proceedings in one jurisdiction the Court may stay proceedings if the balance of fairness so dictates. The Court would take into account factors such as which forum would be most convenient taking into account the location of witnesses, and the delay and expense resulting from a stay. The application to stay proceedings must be made before Decree Nisi. The court will balance fairness and convenience “forum non conveniens” but the starting point is likely to be the jurisdiction with which the couple had the closest connection.
26. In cases not involving EU states England still adopts a discretionary approach and will most likely look to which is the most appropriate forum. In the highly unpopular decision of Owosu v Jackson (2005) ECR- 1-1383 the European Court of Justice considered the two competing jurisdictions of England and Jamaica within the context of civil liability. Mr. Owuso had rented a holiday home in Jamaica from Mr. Jackson who was domiciled in England. Mr. Owuso hit a sandbank after jumping into the sea and was rendered quadriplegic. The ECJ found that the English Court was the appropriate forum despite the accident taking place in, and the witnesses residing in, Jamaica. The ECJ stated: “application of the forum non conveniens doctrine, which allows the court seized a wide jurisdiction as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.”
27. Whilst there is nothing within Brussels II to suggest that the same decision could not be made by the ECJ in a divorce matter, however this is not a case dealing with exclusive jurisdiction rather a general approach to where persons domiciled in a member state may be sued. The provision to stay proceedings until the first jurisdiction has determined the issue lis pendens (Article 66) only applies when another EU country is concerned. Thus if Article 3 of Brussels II can be engaged; or where no other EU country or territory has jurisdiction under Article 7 sole domicile or no other EU country is concerned then the English Court must hear the divorce. This will be the case even if the link to England is of a tenuous nature.
28. In cases where the jurisdiction of divorce proceedings may be an issue it is important to consider the context of the case as a whole, particularly with regard to financial orders, and such decisions will need to be made speedily to avoid trumping provisions. Finally, applications for stays are likely to be costly and surreptitious issuing is likely to destroy good will. Where possible, a negotiated settlement should be sought.
By Rebecca Fairbairn
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