These articles gives a general overview only and the legal position at the time of writing them. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print.
Jurisdiction – Which Country?
Nowadays people travel, buy property and often live away from the UK. This can present jurisdictional issues when considering which country should have control of a case –by example in divorce, children, financial and property matters.
Divorce
European law has provided the basis for deciding the jurisdiction of cases (Brussels II Revised – Council Regulation 2201/2003) in respect of divorces in England and Wales. The importance of Brussels II Revised in respect of Member States and in respect of divorce, nullity or judicial separation is, that if a person starts proceedings in one country that country will have the jurisdiction in respect of the case.
The principles of finding jurisdiction for a case in England and Wales are as follows:-
(i) Both parties are habitually resident in England Wales or;
(ii) Both parties were last habitually resident in England and Wales and one of them still resides there or;
(iii) The Respondent is habitually resident in England and Wales or;
(iv) The Petitioner is habitually resident in England and Wales and has lived there for at least a year immediately before the Petition is filed or;
(v) The Petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months immediately before the Petition is filed or;
(vi) Both parties are domiciled in England and Wales or;
(vii) If none of the above applies no Court of another EU State has jurisdiction either of the parties is domiciled in England and Wales on the date when the proceedings are begun.
These provisos raise a number of issues by example what is meant by habitual residence. English law has not defined habitual residence (Matrimonial Causes Act 1973) but there are many cases that have come before the Courts of England and Wales which have decided principles from which habitual residence can apply. There must for instance be a regular physical presence for a period of time so that it is a question of fact decided on the circumstances of each case and there is a difference between mere residence and habitual residence. On occasions habitual residence can move in a very short time between one country and another when a planned purposeful and permanent relocation from one country to another is effected.
Issues relating to children can be of particular significance when by example parties have moved abroad or marriages between different races occur (Brussels II Articles 8 and 12). It can often be that the Court first applied to in any matter relating to children may well be the Court responsible for dealing with the case whether that be abroad or in England or Wales but in giving consideration to this any Court hearing a jurisdiction application will have to look to which Court is more appropriate for hearing a case relating to children having regard to the best interests of the children.
Offshore Assets
Generally offshore assets are not excluded from the jurisdiction of the Court despite problems with obtaining relevant details. A Court may make an order but there may be significant problems in enforcing such orders. Trusts such as discretionary trusts may be of significant importance to parties and it may be necessary for the Court to look at varying the terms of the Trust to ensure that their order can be complied with.
Parties Who Are Not Married
Nowadays many families fall into this category and equally jurisdiction will be an issue for them also.
Financial support for the children is often of paramount importance and usually such cases are dealt with under Schedule 1 of the Children Act 1989. European law will also come into effect [Brussels I (Council Regulation) EEC (No. 44/2001 …. enforcement)]. Similar to Brussels II often the country who receives the application first will have the jurisdiction of the case. Therefore parties will need to look carefully at what orders can be made by respective Courts.
Conclusions
More often we find clients have dealings internationally and it is important for us as family lawyers despite the complications of jurisdiction to keep these matters in mind.
Children
A case in 2008 highlights the difficult issues of jurisdiction relating to children. In this particular case the parents were English and had a child, both parents worked in the Netherlands but the mother moved to London with the child, joined eighteen months later by the father and for eighteen months they lived as a family in Scotland, thereafter moving back to the Netherlands where the child attended a local school. It was then that the marriage broke down and the mother started divorce proceedings in England and the father started proceedings in The Hague so the child could live with him in the matrimonial home in the Netherlands. The mother’s application was made one day after the husband’s and the two applications commenced separately, the divorce to the Decree Nisi. The wife wanted the proceedings in The Hague to be transferred to England, the husband did not. The mother’s application was not successful Munby J. ruled The Hague Court would have to make a decision on the matter although an English Court could apply to The Hague Court for a transfer but The Hague Court would either have to invite the parties to put the matter before the Court in England or make an order referring the matter to the English Court. To do this and exercise its powers under Article 15.1 of Brussels II, The Hague Court would have to decide on three questions:-
1.Whether the child had a particular connection with the relevant other Member State (England).
2.Whether the English Court was better placed to hear the case or part of it, looking at all the circumstances of the case.
3.Decide if the transfer was in the best interests of the child in all the circumstances of the case.
If all three conditions were met The Hague Court would have a discretion to transfer the case even though the discretion will be limited.
The Hague Court had already decided that it was the appropriate Court to hear the matter and had been asked by the Court to reconsider its decision as there were significant changed circumstances. However the Court was not persuaded that those circumstances were such as to entirely change the aspect of the case as to make it highly probable that The Hague Court could justify changing its decision it would have to decide that the changed circumstances were likely to be decisive and in this case this was not so. This was a stringent test which in most circumstances would be unlikely to succeed.
October 2009
This article gives a general overview only and the legal position at the time of writing this article. It cannot be relied upon in any particular case. Specific legal advice must always be considered to include consideration as to whether the legal position contained in this article has changed since going to print. For further information and advice, please contact Stephen Moss, Jayne McPherson, Andrea Ball, Vicky Emens or Bree Corrigan on 0800 135 7917 or alternatively by email on Stephen.Moss@lemon-co.co.uk, Jayne.McPherson@lemon-co.co.uk, Andrea.Ball@lemon.co-co.uk, Vicky.Emens@lemon-co.co.uk or Bree.Corrigan@lemon-co.co.uk.
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<p><strong><a href="http://www.lemon-co.co.uk/article_jurisdiction.php">Jurisdiction – Which Country?</a></strong><br />
Nowadays people travel, buy property and often live away from the UK. This can present jurisdictional issues when considering which country should have control of a case –by example in divorce, children, financial and property matters....</p>
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