Can the English courts deal with your case

Matthew Aves
Partner – Family Law

Habitual residence and domicile: what do they mean?

We seem to increasingly be dealing with cases involving clients who live abroad, who have lived abroad, who were married abroad or, are married to foreign nationals.

Being married abroad rarely presents a problem in respect of the English Courts (that is English and Welsh) being able to preside in divorce proceedings. As a rule of thumb, the English courts will recognise any overseas divorce, as long as all local formalities have been complied with.

There is some fairly interesting case law in respect of what local formalities might amount to, but that is for another day.

Habitual residence

Subject to some time constraints, the English courts will generally, in determining habitual residence, apply the ‘Centre of interest’ test. Determinable by reference to the place where an individual has established, on a fixed basis, a permanent or habitual centre of interest. A court would be required to consider all the circumstances including:

  • Motivation behind presence in a particular country
  • Residence of members of the wider nuclear family
  • The place of education of any children
  • Place of employment
  • The country in which tax is being paid
  • Where the individual is registered to vote
  • Where assets are located e.g. cash investments, pensions, property, and the like
  • Entitlement to medical treatment – NHS?
  • You can only be habitually resident in one place at any one time – although you can, of course, have “homes” in more than one country.
  • The residence must be fixed (“habitual”) but does not need to be permanent.
  • Habitual residence can be established immediately upon arrival in the country as long as physical presence is allied with an intention to fix and make that country an habitual residence.
  • Physical presence alone will not amount to habitual residence.
  • The actual duration of a stay is not determinative, rather the quality and factors involved in the stay (see above) are more relevant considerations.

Domicile

The concept of domicile is perhaps even dryer in its explanation than habitual residence. Domicile is a UK concept and is determined by the application of a set of legal principles, not merely a finding of fact. Broadly, it is the place of an individual’s permanent home.

General concepts apply.

  • Everyone has a domicile starting with domicile of origin at the time of birth. A domicile of origin can never be truly extinguished, but it can be replaced by the acquisition of a domicile of dependency or choice later in life.
  • The burden of proof lies with the individual asserting a domicile of choice. It is a high burden of proof and in fact, higher than the usual civil court test of balance of probabilities.

Domicile of origin

A child’s domicile will be determined by their parents. It will be the father’s domicile (if the parents are married and the father was alive at the time of birth) or the mother’s domicile (if the parents are unmarried).

Domicile of dependency

A dependent person (e.g. under the age of 16) will acquire the domicile of the person they are dependent upon. This can displace their domicile of origin e.g. if an individual’s father dies after the child’s birth and thereafter the child lives with the mother, the child will acquire the mother’s domicile.

Domicile of choice

Domicile of choice requires living in the new country and an intention to reside there on a permanent basis. Whilst residence is a matter of fact (see above) an individual’s intention can be determined by the Court. A person cannot acquire a domicile of choice without being habitually resident in that same country. Thus, you could not, for instance, argue that you were domiciled in Barbados whilst living in Newport Gwent.

Over and above simply living in a country, other factors which the court has taken into account include:

  • The receipt of income
  • Place of work
  • Education and marriage
  • A change of nationality
  • The purchase of land
  • There are other more minor and rarely encountered considerations.

The reality, of course, is that these issues of habitual residence and/or domicile are rarely argued out within the divorce court. Generally, the practical circumstances of a case will determine habitual residence and domicile and it is only when something else turns on the particular point that arguments can ensue. The divorce application asks the Respondent to confirm acceptance of jurisdiction so there is the opportunity to object. The majority of the reported cases come about as a result of a Respondent believing that they will acquire some financial advantage by divorcing in another jurisdiction e.g. where different rules are applied in respect of property division and/or maintenance.

For further information on any aspect of relationship breakdown or divorce, please contact the family law team on  01732 747900 or email [email protected] Warners has offices in Sevenoaks and Tonbridge in Kent.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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