27th Jan 2014

Which European Court Should Decide a Couple’s Divorce?

High Court provides judgment in jurisdiction dispute

The High Court has delivered a reported judgment that defines which European court must be used when married couples travel from one country to another and then divorce.

Mr Justice Moor, in the case of Divall v Divall ordered that Mrs. Divall, a British citizen who had moved to Holland with a clear intention to remain there indefinitely, should have her divorce decided by the Dutch courts.  The wife had been born in China but was forced to give up Chinese citizenship when she became a British citizen in 2002.  She later moved to Holland with her British husband before the marriage came to an end some years later.

The husband, who was the primary carer for the children, wanted the English courts to decide matters arising from their divorce. 

The wife objected and wanted the Dutch courts to have conduct of the case.

A country’s courts can decide legal matters relating to divorce if complex rules relating to where the couple habitually reside are met or if certain domicility tests can be satisfied. Both the husband and wife continued to live in Holland at the time that the husband lodged his application.  For that reason there could be no doubt that the Dutch courts had the authority to decide the case if either partner applied to it.

The husband could also apply to the English courts if he could prove that both he and his wife were domiciled in England and Wales and were only living in Holland on a temporary basis.

Courts are therefore allowed to be used in different countries on two different grounds; firstly, if the couple are both habitually resident in a country and; secondly, if it is shown that the couple are domiciled in that country.

In this particular case the wife might have acquired a domicile in England when she became a British citizen in 2002.  Even if she had done so, it was now argued that she had acquired a new country of domicile on the basis of her later move to Holland where she intended to remain permanently or indefinitely.

Domicility can be a complicated legal issue. 

Everybody has a domicile of origin – usually the country where they were born.  That can be temporarily replaced with domicile of choice when somebody lives in another country combined with an intention of remaining there permanently or, at least, indefinitely.  A domicile of choice can be replaced by a later decision to relocate to and remain permanently or indefinitely in another country.

The husband was unsuccessful in persuading the court that the wife had no intention to remain in Holland indefinitely.  On that basis the court reached the conclusion that the wife’s chosen country of domicile remained in Holland.  The English courts, in the circumstances, had no jurisdiction and had to step down, leaving proceedings to continue in Holland.

Helen Greenfield, associate solicitor with specialist divorce lawyers Family Law in Partnership in Covent Garden explained that the case came to them via their extensive European network. 

“Mrs Divall initially took instructions from lawyers in Holland.  They kindly put her in touch with us so that we could help her to successfully oppose this attempt to have her divorce decided in England – a country that she had left six years ago.

“Jurisdiction disputes such as these are likely to become more frequent as migration across European borders increases.” 

Family Law in Partnership are internationally recognised as a leading London divorce firm helping local and overseas clients to resolve matters arising from divorce and separation.  They can be contacted on 020 7420 5000.  Helen Greenfield can be contacted by email on HG@FLiP.co.uk and general enquiries should be sent to hello@FLiP.co.uk