Divorce jurisdiction: Up to 31 December 2020
Prior to the UK’s departure from the EU we relied upon Brussels IIA to deal with decisions on where a divorce case should be heard. All EU member states were bound by the same principal of “lis pendens” – the country where the divorce petition was issued first would seise jurisdiction (assuming all subsequent formalities regarding service were complied with) and any subsequent petition would be stayed. This approach was often criticised as it led to “jurisdiction races” with parties sprinting to court to be first in time to file their petitions in their preferred jurisdiction. In some instances parties who perhaps were not convinced their marriage had reached an end felt under pressure to file to avoid the risk of ending up with proceedings in a less favourable jurisdiction. However, the Brussels IIA regime did at least provide clarity.
Divorce jurisdiction: From 1 January 2021
Jurisdiction now falls to be determined by the domestic law. In England & Wales, this is the Domicile and Matrimonial Proceedings Act 1973 (“DMPA”) (as amended). Section 5(2) says:-
The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if):
(a) both parties to the marriage are habitually resident in England and Wales;
(b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
(c) the respondent is habitually resident in England and Wales;
(d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
(e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
(f) both parties to the marriage are domiciled in England and Wales; or
(g) either of the parties to the marriage is domiciled in England and Wales.
This differs from the previous jurisdiction grounds in a number of ways.
The differences from the old regime
Previously one party could only issue a petition based on their sole domicile if no other member state had jurisdiction (the “residual jurisdiction”). Now sole domicile is available as a ground for divorce in all circumstances for petitions issued in England and Wales. This makes it easier for individuals to invoke the jurisdiction of the English Courts. However, it remains to be seen how the EU will react to a petition filed in England based on sole domicile where there is a competing EU member state with jurisdiction based on one of the other grounds, the EU member states not otherwise themselves recognising a petition based on sole domicile.
Under Brussels IIA there was jurisdiction to file if the application was made jointly. This has been omitted under the DMPA as a joint petition is not currently available in England & Wales (though is an amendment introduced by the Divorce, Dissolution and Separation Act, which is expected to come into force in the autumn of this year).
Article 3 indents (5) and (6) – The Marinos and Munro Debate
Article 3 of Brussels IIA sets out seven grounds which grant jurisdiction for divorce in EU member states. Under Article 3 indents (5) and (6), in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State in whose territory:
(5) the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
(6) 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 United Kingdom and Ireland, has his or her “domicile” there.
The controversy at first seems subtle but has been debated extensively in domestic case law, most notably in Marinos v Marinos  2FLR 1018, Munro v Munro  1 FLR 1613 and, more recently, Pierburg v Pierburg  2 FLR 527.
If the English law position continues to follow that of the EU (and this is far from clear) will we find ourselves, in due course, back to where we started, with the Courts reverting to the previous domestic law interpretation of habitual residence per Ikimi  2 FLR 1288)? Residence and habitual residence have different meanings. An individual may have more than one place of residence, for example they may split their time between homes in two different countries. However, they may only have one place of habitual residence. Habitual residence implies a greater degree of connection and permanence and an intention to remain settled there.
The question posed by Marinos and Munro was centred on what degree of residence is required for the preceding 12 month (indent 5) or 6 month (indent 6) period. An individual had to be habitually resident on the day the petition was issued but the debate was over the degree of residence required for the preceding period – did that have to be just residence or habitual residence as well?
In Marinos Munby J interpreted indent 5 to require habitual residence on the day that the petition was issued but only ordinary residence in the preceding period. In Munro, Bennett J disagreed and said that the petitioner had to be habitually resident on the day the petition is issued AND habitually resident for the preceding six/ twelve month period.
The debate was revisited in Pierburg where Moor J came down in favour of the Munrointerpretation – the more onerous requirement of being habitually resident both on the day of issuing the petition and for the necessary preceding period. In fact, in Pierburg the wife ultimately failed to satisfy the requirements set out in either Marinos or Munro based upon the particular facts of that case.
Al least for the time being, the wording of the amended paragraph in the DMPA above seems to have resolved the debate. It requires the petitioner to be habitually resident on the day that the petition is issued but only resident for the preceding period (one year for indent (d) and six months for indent (e). Marinos appears to have been approved and placed on a statutory footing. It might be said that this eases the path for the forum shopper seeking to file a petition in England as they can merely satisfy the residence criteria without the need to have been habitually resident for the specified period.
Article by Kelly Gerrard, Legal Director and Knowledge Development Lawyer in the Family Department. For further information, please contact Kelly Gerrard by email or your usual contact in the Family Department or, alternatively, telephone on 020 7465 4361.