Jurisdiction for Divorce – Brussels II

One important question in international family law cases is which courts have the power to deal with a divorce because different courts can decide quite differently.

The rules are similar for civil partnership dissolutions for same-sex couples, but do not apply throughout the EU.

To be able to start a divorce in a particular country, the couple has to have a connection with that country. The rules for whether a court in the EU (except Denmark) has jurisdiction for divorce are almost uniform throughout. The only difference is that for the UK jurisdictions and Ireland “domicile” instead of nationality is the deciding factor in the category where this is relevant.

Someone can start a divorce in an EU member state (or part of the UK) if one of the following applies:

both are habitually resident there;
both were habitually resident there and one of them still lives there;
the respondent (not the person who starts the divorce) is habitually resident there;
in countries where one can make a joint application either spouse is habitually resident there; this does not apply in England;
the person who starts the divorce is habitually resident there and has lived there for at least a year immediately before starting the divorce application;
the person who starts the divorce is a national of that country (or for the UK and Ireland “domiciled” there) and is habitually resident there and has lived there for at least six months immediately before starting the divorce application; or
both spouses are a national of that country (or for the UK and Ireland have their “domicile” there).

Only if neither spouse could start a divorce anywhere in the EU (except Denmark), can the applicant fall back on any other rules that a member state may have. In England one could then start a divorce based on the domicile of one of the spouses. However, this does not apply if the respondent is a national/domiciled or habitually resident in any EU country.

In many cases it is possible that each spouse could start a divorce in more than one country. However, in some countries a divorce can only be started after a minimum period of separation. Since no minimum separation period is required in England, in most cases, it is possible to start a divorce in England earlier than elsewhere.

A second rule of the EU law is that the divorce that is first started will prevail and a divorce started later in another country has to be rejected.

Because financial matters are in most cases dealt with as part of or ancillary to the divorce and the outcomes can be quite different depending on which court deals with it, it is important to consider carefully and quickly which court is best for you and whether you should start a divorce immediately to prevent your spouse from starting one in another country first.

While some countries have rules that govern which law to use for the divorce and financial aspects, English courts always use English law and disregard any agreement in a pre-nuptial agreement about which law to use. Even if the other court also used English law, the chances are that the foreign judge would apply English law quite differently because financial aspects are decided on the judge’s discretion.

For advice on your specific circumstances contact Andrea Woelke at Alternative Family Law: ring or email us.

April 2009

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Jurisdiction for Divorce – Brussels II

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