How Courts Determine Divorce Jurisdiction
Let’s talk about divorce jurisdiction. For a divorcing high-net-worth couple who travel frequently and have lived in many countries over the course of their life, deciding the jurisdiction where legal proceedings will be held upon can be of vital importance.
London has been called the ‘divorce capital of the world’ due to the generosity often shown by judges to the wives of wealthy men. The desire to have the financial settlement decided in the UK can lead to lengthy negotiations and even court proceedings prior to the divorce case beginning. The Honourable Mr. Justice Cobb recently made a ruling on a case involving a couple in disagreement over whether the petition for divorce and financial relief proceedings ought to be conducted in Courts in England or Sarajevo. By analysing the steps Justice Cobb made when making his decision in favour of the petition being heard under English jurisdiction, readers can see how such a conclusion is reached and the strategy they and their legal team may wish to employ to have the best chance of receiving a similar result; the divorce jurisdiction being the UK.
The facts of the case
This case was heard in private, and the report of the case was released on condition the anonymity of the parties remained protected. J, the husband was born in India and moved with his parents to London when he was 14 years old. He completed his education in England and then joined the civil service, where he remained for 23 years.
J had purchased a house in Fulham. He met his wife, U a British and Irish dual national who had been born in England, in Brussels while working for the European Commission.
J was assigned to work in London and moved back there with U where they resided in the Fulham house. U asserted that she invested over the years nearly £80,000 on renovations and maintenance of the Fulham property, and relied on this point to assert that she viewed the Fulham property as her ‘home’, and London as her base.
Between 2003 and 2005, J spent extended periods with U in Albania, where she worked. In April 2005, U was granted diplomatic status. In approving the change of status, U’s permanent address was recorded as London and her address to the Fulham property.
In August, U and J married in Italy. In October 2006, J moved to live in Sarajevo, Bosnia having taken up a job there. In 2015, the marriage broke down, and in July of that same year, U issued her petition for divorce in London.
The petition stated that U sought a dissolution of her marriage from J and contended, amongst other things;
- U and J were habitually resident in England and Wales;
- U was domiciled in England; and
- the jurisdiction for determining the divorce and financial relief matters was to be England.
Issues for the court to decide upon when determining the divorce jurisdiction
Essentially, the Court was asked rule on three points:
- Whether the U, whose native country is Ireland, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
- Whether the J, who was born in India, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
- If either party has domicile here, whether it has been demonstrated that there is another Court with competent jurisdiction which is clearly or distinctly more appropriate than England to hear the divorce petition and rule on the financial settlement.
The court’s decision
Justice Cobb began his reasoning by relying on the long-established principles defining domicile contained in Dicey, Morris & Collins on the Conflict of Laws (15th edition) (Dicey).
According to Dicey, no person can be without domicile and under English law, a person’s domiciled residence is generally in the country where he or she has their permanent home. However, the length of time a person spends in a particular jurisdiction is not the ultimate determining factor on whether they are considered domiciled there.
Justice Hobbs then went on to clarify that when establishing domiciled residence, the court had a duty to consider all the relevant factors put before it. He quoted from Drevon v Drevon (1864) 34 L.J. Ch 129 at 133
“there is no act, no circumstance in a man’s life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be of more weight with regards to determining this question than an act which was of more importance to a man in his lifetime.”
The burden of proof in such cases lies with the person stating that the UK should be the country in which the divorce petition and financial settlement should be decided, and the standard of proof is on the balance of probabilities. According to Dicey, a person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.
Justice Cobb concluded that the amount of moving between countries was not unusual for those working in the diplomatic service, where short-term postings are common. After balancing all the evidence put before him, he ruled that J had failed to demonstrate that the case might be tried more suitably for the interests of all the parties and the ends of justice, in Sarajevo. Therefore, the petition and financial reliefedy proceedings would proceed in the English Court.
What his decision means for you
In his decision regarding the divorce jurisdiction, Justice Hobb made an interesting observation regarding the U. He stated that
“I am satisfied that the Petitioner has maintained strong practical, financial and fiscal links with the UK throughout her multiple postings. London has been the city to which she has returned for important medical treatment. I find that she viewed London as her ‘base,’ her adopted home, in place of Ireland, and she developed from 1995 onwards (more strongly from 2000) a “singular and distinctive” relationship with London which replaced that which she had had with her original home in Ireland.”
However, he then went on to add,
“What I found surprising and distracting about the Petitioner’s case was that the Petitioner spoke with relatively little emotional warmth about, or attachment towards, England as a country. Even when discussing her thesis, the evidence was given without much discernible enthusiasm or passion for her quintessentially English subject; she told me little of what she actually liked about London or England. It was notable (as the Respondent observed) that she has not ever chosen to holiday here. This factor caused me to hesitate long before reaching my ultimate conclusion, but in the end, it was not sufficient to counter-balance the other factors which demonstrated that London had, in my finding, become her ‘centre of gravity,’ and the place of her permanent home.”
These comments illustrate how deeply the courts will consider and evaluate all the factors when deciding regarding the divorce jurisdiction best served to hear a divorce petition. Even the attitude of the Petitioner to their domicile of choice will be taken into account.
There were several factors which resulted in the judge finding in favour of the Petitioner to have the petition for the divorce jurisdiction to be in London; such as the fact neither party spoke much Bosnian, the Respondent no longer resided in Sarajevo and both parties were familiar with the UK legal system. Had these factors not been present, the Petitioners apathy towards England may have worked against her.
It is, therefore, clear that Petitioners and their legal team must work hard to demonstrate that their divorce petition should be heard in London and nothing can be taken for granted.
London might be the divorce capital of the world, but it is not open to everyone.
Saracens Solicitors is a multi-service law firm based opposite Marble Arch on the North side of Hyde Park in London. We have years of experience representing high-net-worth individuals in divorce proceedings and have the resources and expertise available to achieve swift, fair financial settlements. For more information, please call our office on 020 3588 3500.
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