Jurisdiction for divorce (matters when living in EU)
Brussels II came into force on 1 March 2001. It primarily affects three (3) things, the court’s basis for jurisdiction for divorce, forum proceedings when there are divorce proceedings in two European countries and thirdly international child arrangements. Brussels II is the Brussels Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters.
It came simultaneously into force across the then existing EU states. For example at the time it made dramatic changes to English divorce jurisdiction.
Brussels II creates identical divorce jurisdiction across most of Europe. For the first time the jurisdiction for divorce in countries such as France, Germany, Italy, Spain and England and off course Malta once it is introduced is the same. This meant that the countries would not have different rules on the jurisdiction of cases before them. The grounds for divorce are not effected however. They were and are still the competence of the member state to legislate on the grounds for divorce.
In the case of England prior to the introduction of Brussells II the only grounds which were applicable to determine whether the court had divorce jurisdiction, were the sole domicile and twelve (12) month habitual residence of either party. Now domestic law has come into line with Europe.
An interesting case is the following whereby the court, besides the grounds for divorce, defined the issue of habitual residence as follows:-
Re V (Jurisdiction: Habitual Residence)
In Re V (Jurisdiction: Habitual Residence) [2001] 1 FLR 253 the father and mother were Ghanaian but had spent most of their lives in England. They had never married but had lived together and had a child. Both parents and the child were British citizens. The parents separated without divorce proceedings, when the child was two years old but dad paid child maintenance and had regular contact, including staying contact. On 21 January 2000 the mother told the father that the child had been sent to Ghana along with her half sister to reside with the maternal grandmother. That same day, without notice to the mother, the father obtained a prohibited steps order against the child’s removal from England. The mother attended court 3 days later and confirmed that the child had left the country prior to 21 January. As a consequence the child was made a ward of the court.
The mother subsequently questioned the jurisdiction of the court. The mother’s evidence was contradictory as to her intentions regarding the length of the child’s proposed residence in Ghana and the arrangements made for her education. It was clear however that she had been at pains to ensure that the father did not receive prior notification of her plans. The parents agreed, in a similar way as with most divorce proceedings, that the child had been habitually resident in England and Wales until she left the country. The mother said that the child had lost her habitual residence in England when she sent her to Ghana and that as a consequence the English courts did not have jurisdiction.
The court, Wilson J, held the burden to establish the loss of habitual residence was with the mother. Where a mother alone had parental responsibility and had a settled intention at the time that the child left the jurisdiction that the child should reside in another country on a long term basis, then the child would lose her habitual residence in the first country, even though the mother herself remained habitually resident there. In the present case whilst the mother’s original affidavit stated that it was her intention that the child reside permanently in Ghana, later affidavit material and evidence from the child’s school in England were contradictory. The lack of clarity in the mother’s plans and the inconsistencies in and alterations to her evidence confirmed the absence of settled intention at the time that the child left the country. Accordingly the child was habitually resident in this country at the time when the father issued proceedings in Wardship. As a consequence the jurisdiction existed to make the orders sought by the father with regard to the return of the child to England and contact.
Had the father had parental responsibility for the child when she left the country, as he would have if there where grounds for divorce, there could have been no claim that the mother could unilaterally alter the child’s habitual residence as it would be a matter for both parents. The father was clearly entitled to an order for parental responsibility as on the facts and in his timely initiation of the proceedings he had shown himself to be parentally responsible.
Therefore residence only changes when there is a clear settled intent. However care must be taken in using principles of children cases in divorce and finance work. The principles and considerations can be different
Irvin
In Irvin (2001) 1 FLR 178 a US husband moved to work in England and married a English woman here, took up British nationality, then took up a job in the Netherlands and traveled there weekly. He got a divorce and bought a house in the Netherlands and then met there a Portuguese woman whom he married. He lived for 20 years in the Netherlands but did not speak the language or become Dutch in any way. He then retired and planned to return to England, and when his wife would not come with him – her career was solely in Netherlands – they separated. Did the English court have jurisdiction of domicile like jurisdiction for divorce? Had he abandoned his earlier domicile in England and if so had he formed a domicile in the Netherlands which he had not yet abandoned?
The English court found that his continued links with friends in England, his British nationality and his limited assimilation into Dutch society provided the necessary evidence that he had not abandoned his first domicile of choice in England. His state of mind indicated an intention to return to England to retire. The fact of having lived in the Netherlands for 20 years was not enough to make the Netherlands his permanent home for an unlimited period and the applicable divorce jurisdiction.
What is of interest is that now B II would apply to this divorce case. After all, she was resident in the Netherlands and it had been the place of last joint residence. And he would not have had immediate jurisdiction to issue in England but would have needed to support his domicile with 6 months residence. If his wife had issued in the Netherlands in that period, then she would get in first and the divorce would go ahead there irrespective of his English domicile. Given that in this case they lived their married life in the Netherlands this is probably fair. Why should England have dealt with their divorce in preference to the Netherlands? B II may often produce a fair result more quickly. But urgent action by practitioners is needed to get it.
I v I
In I v I [2001] 1 FLR 913 High Court and (2001) Fam Law 660 CA, the couple were both Nigerians, spent the majority of their lives in Nigeria and kept a home there. They also rented here from 1978 – assets were not a problem. Their 4 children were born here, and were both Nigerian and British citizens and were educated here. They were unable to travel here from 1994 to 1998 due to the political situation in Nigeria (although children stayed here) but as soon as they could again travel, the wife came here. Within a month the husband commenced divorce proceedings in Nigeria and 12 months after her arrival, the wife issued here on basis of 12 month residency.
Was she habitually resident here? She said that her habitual residence was based on her strong ties with England and her regular stays here which had only been interrupted by the political situation in Nigeria. He said her habitual residence had been in Nigeria. She only spent 161 days of the year here, less than half the year so the jurisdiction for divorce should be England.
Both the High Court and Court of Appeal found there was no worthwhile distinction to be drawn between “habitual” residence and “ordinary” residence. They were synonymous. The quality of the wife’s presence here was residence and the family life was such that it could be called habitual. The courts said although a person could have 2 habitual or ordinary residences at the same time, the Court of Appeal emphasised that a person had to spend “an appreciable” part of the relevant year here to qualify, though unhelpfully did not define appreciable!
This will be hugely important under B II when looking at jurisdiction. It will mean that families can have two residences and so there are likely to be more countries with possible jurisdiction for divorce.
Breuning v Breuning
In Breuning (2002) 1 FLR 888; the husband was in England only for medical treatment yet had homes in South Africa and the Seychelles. This did not count for residency. Moreover where habitual residence is in issue, the court said simplicity of essence should be encouraged.
Conclusion
Therefore, the issue of divorce jurisdiction is of utmost importance when one is assisting his clients, and it is getting more and more important when issues of free movement of persons arise. Being cases of family matters like divorce, one has to act in a timely manner in order to determine which is the best course of action for the best interest of the client/s.