Jurisdiction for Divorce and Brussels II

EU Certificate for Divorce

How do you get an EU-Certificate for divorce? See this blog post.

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. This is called jurisdiction, that means the right of the courts of a country or territory to hear a case. On this page you will find:

English Rules for Divorce Jurisdiction

To be able to start a divorce in a particular country, the couple has to have a connection with that country. A spouse can start a divorce in in England and Wales if any one of the following applies:

  1. both are habitually resident in England and Wales; or
  2. both were habitually resident in England and Wales and one of them still lives there; or
  3. the respondent (not the person who starts the divorce) is habitually resident in England and Wales; or
  4. on a joint application either spouse is habitually resident in England and Wales; or
  5. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before starting the divorce application; or
  6. the applicant is “domiciled” in England and Wales and is habitually resident there and has resided there for at least six months immediately before starting the divorce application; or
  7. both spouses are have their “domicile” in England and Wales; or
  8. one spouse has their “domicile” in England and Wales.

The last but one ground seems superfluous because you could always use the last ground. It is there because the other points were taken from the pre-Brexit EU rules (see below). However, it is best to use all grounds which apply because the courts of another country may look at the English divorce and stay a parallel application in the other country based on whether the law of the other country provides that England has jurisdiction.

For same-sex couples, there is an addition ground: If they married under the law of England and Wales and they could not otherwise divorce here, they could do so if the court thinks it would be in the interests of justice to assume jurisdiction. This provision caters for cases where, for instance, two Turkish women who at the time lived in England married here but are now both living back in Turkey. The courts in Turkey would almost certainly not deal with a divorce because Turkish law does not recognise same-sex marriage. They can then still regularise their situation in the English courts.

The rules are similar for civil partnership dissolutions for same-sex couples.

EU Rules for Divorce Jurisdiction – Brussels II

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 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 (except Denmark) if any one of the following applies:

  1. both are habitually resident there; or
  2. both were habitually resident there and one of them still lives there; or
  3. the respondent (not the person who starts the divorce) is habitually resident there; or
  4. in countries where one can make a joint application either spouse is habitually resident there;  or
  5. the person who starts the divorce is habitually resident there and has lived there for at least one year immediately before starting the divorce application; or
  6. the person who starts the divorce is a national of that country (or for Ireland “domiciled” there) and is habitually resident there and has lived there for at least six months immediately before starting the divorce application; or
  7. both spouses are a national of that country (or for 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 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 and Wales, in most cases, it is possible to start a divorce in England and Wales earlier than elsewhere.

What Happens when there are Divorces in More than one Country?

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. Some EU countries may apply this law to divorces started in non-EU countries, such as the UK. Of course if the first divorce fails for reasons of substantive law (e.g. the minimum period of separation has not been met) and the court rejects it, either party can then start a new divorce, perhaps also in the other country, depending on the constellation at that time. With no-fault divorce in England, it is difficult to see how an English application could fail.

In English law the rules are more complicated. Essentially there are strict rules in cases where there are applications in other UK jurisdictions, but for everywhere else, the court has a discretion and looks at which country is the best to hear the case. Of course one aspect may be whether a case was started in another country earlier and has already progressed.

Because financial matters are in most countries 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. Sometimes this is pejoratively called “forum shopping”. However, it is simply sensible consideration of what is best in all the circumstances. If you do not do this with your lawyer, your spouse may do it with theirs!

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 provision in a pre-nuptial agreement about which law to use. Even if the courts in the other possible country 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.


Even in international cases it is possible to come to an overall agreement through mediation. Sometimes it may be necessary to start court proceedings in one country first so that the other party cannot do that in another country. However, litigation in international cases can be costly, in particular if there are legal proceedings in more than one country. Mediation can cut through this and you can start mediation at any time in the proceedings.

For advice on your specific circumstances contact Andrea Woelke who works as a consultant solicitor at Josiah-Lake Gardiner Solicitors: ring Andrea on 020 3633 0338 (+44 20 3633 0338 from abroad) or him (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).

Please note that Josiah-Lake Gardiner Solicitors do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.

7 February 2024 by Andrea Woelke