DIVORCE- JURISDICTION AND PROCEDURE

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 husbands 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 members bill meant that
women had only to prove their husbands 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;
(a) that the respondent has committed adultery and the petitioner finds it
intolerable to live with the respondent,
(b) that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent,
(c) that the respondent has deserted the petitioner for a continuous period of at
least two years immediately preceding the presentation of the petition,
(d) that the parties to the marriage have lived apart for a continuous period of
at least two years immediately preceding the presentation of the petition and the
respondent consents to the decree being granted,
(e) that the parties to the marriage have lived apart for a continuous period of
at least five years immediately preceding the presentation of the petition.
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.

THE PROCEDURE
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.

JURISDICTION

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.
(2) For the purposes of this regulation, domicile shall have the same meaning
as it has under the legal systems of the UK and Ireland.
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
Respondents, 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 persons 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 courts 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 childs 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 mothers 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.

DOMICILE
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 persons
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.
STAYS

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)).

MANDATORY STAYS

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 wifes 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).

DISCRETIONARY STAYS

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.

NON-EU CASES

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.


Rebecca Fairbairn
Family Barrister Personal Website