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EMPOWERING THE PUBLIC THROUGH FAMILY COURT

Disclaimer : Our guides do not in any way constitute legal advice. The guides have been developed by lay people who are not lawyers and have no legal training or qualifications.

 
 
  Our Divorce Guide  
 
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Can I apply for Divorce?

If you have any questions about your case please contact us at www.mckenziefrienduk.net on 01420 370770 for a FREE 1 hr consultation.

If you wish to start divorce proceedings in England or Wales, the Courts will have jurisdiction in relation to the proceedings provided that divorce proceedings have not been properly initiated in another EU member state and if :

(a) You and your spouse are habitually resident here; or

(b) You and your spouse were last habitually resident here and one of you still lives here; or

(c) Your spouse is habitually resident here; or

(d) You are and have been habitually resident here for one year before the divorce petition is issued; or

(e) You are and have been habitually resident here for 6 months before the divorce petition is issued and are domiciled here; or

(f) Both you and your spouse are domiciled here.

Habitual Residence

In most cases jurisdiction is determined by habitual residence. Habitual residence is not defined in legislation and the interpretation is guided by case law.

Habitual Residence is essentially your place of ordinary residence. It is a question of fact which will be decided by the court according to all the circumstances of your case.

In a 2007 case the court determined that habitual residence is “the place where the person had established, on a fixed basis, his permanent or habitual centre of interest, with all the relevant facts being taken into account for the purposes of determining such residence”. Some examples of factors which could indicate habitual residence include:

Duration of stay

Regularity, conditions and reasons for stay

Children’s attendance at school

Linguistic knowledge

Integration into family and social life

It is not possible for a person to be habitually residence in two countries at the same time. Habitual residence can be lost in a day if you leave a country with a settled intention not to return, but it is not possible to acquire habitual residence in the same time period, so theoretically someone can be without an habitual residence for a period of time.

There must be an appreciable period of time and a settled intention to remain to establish habitual residence.

Domicile

The concept of domicile is peculiar to the UK. It is the legal term denoting your connection with the legal system which governs you. In relation to jurisdiction for divorce proceedings, it is generally only relevant when neither your spouse nor you can satisfy the requirements for habitual residence.

When born, a person acquires a Domicile of Origin. This is the country in which your parents were domiciled at the time of your birth (or your mother, usually, if your parents were separated).

A Domicile of Origin will never be lost, but it can be displaced by a Domicile of Choice. A Domicile of Choice can only be acquired if you are resident in the chosen country and have an intention to acquire domicile there.

Residence by itself (whether habitual or not) does not automatically lead to the acquisition or loss of a Domicile of Choice. Your domicile will be the legal system to which you have voluntarily subjected yourself until the end of your life. For example, if your Domicile of Origin is in the UK and you move to another country, but have an intention to return to the UK at some point, your domicile will remain in the UK.

If you abandon a Domicile of Choice, your Domicile of Origin will be revived as there is no automatic assumption of a new Domicile of Choice. If the question of domicile is disputed, it will be a matter for the court to decide.

If you claim that there has been a change in your domicile, it is for you to prove this, which is generally difficult to do. Relevant factors include:

Residence – including whether residence is voluntary or not

Long term intentions

Family and other ties to the country

How often you return to the country of domicile

Tax links

Length of Marriage

You must have been married for more than 12 months.

Has the marriage irretrievably broken down?

A recent decision by the Court of Appeal has highlighted the fact that it is not enough for one spouse to say that they no longer wish to be married to their partner – the relationship must have ‘irretrievably broken down’ – and this is a matter for the court, not the individuals, to decide.

 
     
 
 
 
DIRECTOR
     
 
Philip Kedge is a retired police Chief Inspector and the founder and director of the McKenzie Friend UK Network. His aim is to take family law out of the hands of solicitors with an ethical business to reduce conflict and acrimony, to provide a cost effective McKenzie Friend national service and to reduce the emotional harm to children.