England: Family Law

Divorce jurisdiction: The courts of England and Wales have divorce jurisdiction if either spouse is domiciled in England and Wales. Child custody jurisdiction: They have child custody jurisdiction if the child is habitually resident there. The law has been changed since the United Kingdom left the European Union.

Three separate legal systems: Within the United Kingdom there are three separate legal systems. Scotland and Northern Ireland each has its own legal system, which is not the subject of this review. A judge of the courts of England and Wales (for convenience, "the English court") applies the law of England and Wales (for convenience, "English law").

Unlike the United States, there is no requirement in English law to establish that a non-domiciliary spouse submits to jurisdiction or is connected to England to an extent sufficient to satisfy “due process” requirements so as to authorize an English court to handle the financial consequences of a divorce.

Provisions about Jurisdiction: Section 5(2) of the U.K.'s Domicile and Matrimonial Proceedings Act 1973 provides that, for England and Wales, “The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) on the date of the application—

(a) both parties to the marriage are habitually resident in England and Wales;

(b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;

(c) the respondent is habitually resident in England and Wales;

(d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;

(e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;

(f) both parties to the marriage are domiciled in England and Wales; or

(g) either of the parties to the marriage is domiciled in England and Wales.

The Ground for a Divorce in England: The sole ground for a divorce in England and Wales, pursuant to Section 1 of the Matrimonial Causes Act 1973, is that “the marriage has broken down irretrievably.” Section 2 provides that a court may not hold the marriage to have broken down irretrievably unless the petitioner proves one or more of the following facts,

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition ... and the respondent consents to a decree being granted; or

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.

The most well-used ground, in (b) above, requires the petitioner to show that the other spouse has behaved so badly that it would not be reasonable to require the petitioner to live with that person any longer. 

Child custody jurisdiction in England: Jurisdiction for matters of “parental responsibility” is based primarily on the child's habitual residence, while child custody jurisdiction in the United States is primarily based on a different connecting factor, the child's “home state.”

Section 3 of the U.K.'s Family Law Act 1986 provides that there is jurisdiction as to matters concerning “parental responsibility” if the child (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom. The English courts also possess an “inherent jurisdiction” in respect of children that can be exercised in limited situations.

Disclaimer: We are admitted to practice only in New York but work as appropriate with lawyers throughout all U.S. states and throughout the world.

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