Jurisdiction - overview

Under the Domicile and Matrimonial Proceedings Act 1973 the courts in England and Wales have jurisdiction in respect of proceedings for divorce and judicial separation if the court has jurisdiction under the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II A or Brussels II bis), or where no court of a contracting state has jurisdiction under that regulation and either of the parties are domiciled in England and Wales on the date when proceedings are begun.

In relation to children, the Family Law Act 1986 prescribes the circumstances in which the court has jurisdiction to make a Part 1 order. This includes an application for an order under the Children Act 1989, s 8, except orders varying or revoking previous Part 1 orders. In relation to other proceedings concerning children the common law rule may apply.

Forum shopping

In cases with an international element there may be more than one country with potential jurisdiction to deal with proceedings. Forum shopping is an attempt to get the case heard in the court most likely to produce the most favourable outcome. If there is a dispute in the courts of the member states of the EU it will usually depend on who issued the proceedings first. But the issue may not be straightforward and a number of recent reported cases have focused on which jurisdiction was first seised.

Inherent and statutory jurisdiction

The inherent jurisdiction of the High Court allows it to make binding declarations of right if it can be shown that there is some right to relief which the court would be able to grant. Following the enactment of the Rules of the Supreme Court of 1883 the inherent jurisdiction was largely absorbed into the High Court practice. Now that comprehensive statutory jurisdiction has been created, there will be comparatively few cases when it will be necessary to invoke the High Court's inherent jurisdiction.

In relation to the forum of proceedings and jurisdictional issues, statutory provision by way of European legislation now dominates as detailed below.

Domicile

Everyone has a domicile attributed to them at birth: a domicile of origin. A new domicile may be acquired by residing in another country with the intention of continuing to reside there for an indefinite period, a domicile of choice. The question of domicile may become relevant in proceedings in which jurisdiction is in issue. The acquisition of a domicile is not straightforward and has featured in recent reported cases with a varying approach by the courts.

Habitual residence

In establishing which court has jurisdiction, the habitual residence of a party may be crucial. In the context of European Community law it has an autonomous meaning. For the purpose of the Council Regulation you cannot be habitually resident in more than one country. Where it is not defined, habitual residence should be understood according to the ordinary and natural meaning of the words. In English law it refers to a persons abode in a particular place or country that they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being.

Brussels I

Brussels I - Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, provides for a uniform jurisdiction in civil matters. For family cases it contains provision as between member states for jurisdiction as to where the defendant is domiciled. Consideration should be given to the provisions of Brussels I when drafting a pre-nuptial agreement where there are issues of jurisdiction.

Where proceedings are issued in two courts of different member states, any court other than the court first seised shall stay its proceedings until such time as the jurisdiction of the court first seised is established.

There are also provisions regarding recognition and enforcement of judgments.

Brussels II

Brussels II was repealed in November 2003 by Brussels II A.

Brussels II A or Brussels II bis

Brussels II bis has applied in its entirety since 1 March 2005. It adopts the provisions of Brussels II in relation to jurisdictional issues regarding matrimonial proceedings. In addition, it provides a unification of jurisdictional rules in relation to all children. Transitional provisions remain in place for pre-2005 proceedings and some family matters are outside of the ambit of Brussels II bis, eg maintenance obligations.

Brussels II bis applies to all EU states except Denmark.

Article 3 sets out the grounds for the assumption of jurisdiction in proceedings for divorce, legal separation and nullity. Where proceedings relating to, for example, divorce are brought before courts of different states, the court second seised shall of its own motion stay its own proceedings until such time as the jurisdiction of the court first seised is established. Once established, the second court must decline jurisdiction.

Recognition of foreign divorce and dissolution of civil partnership

Recognition of foreign divorces and decrees is governed by Brussels IIbis and the Family Law Act 1986. Divorces obtained in the contracting states to Brussels II bis (ie the EU states except Denmark) will be recognised pursuant to the relevant recognition and enforcement articles of Brussels II bis.

The recognition of foreign dissolutions of civil partnerships falls outside Brussels II and Brussels II bis, but is governed by the Civil Partnership Act 2004 and makes provision corresponding to Brussels II bis for the recognition of a civil partnership judgment from another member state including Denmark.

There are limited grounds for non-recognition of a judgment, including that it is manifestly contrary to public policy, was given in default of appearance without proper notice, or is irreconcilable with an earlier order.