For a couple who come from different countries, or who have lived in various places during their marriage, the question must be raised: ‘where is the right place to divorce?’

The rules, ideas of fairness and outcomes vary from Court to Court, and it is therefore very important to carefully consider which jurisdiction to divorce in, depending on your desired result. There are, however, strict rules governing where parties can apply for jurisdiction. In England and Wales one such rule is that at least one of the couple is ‘domiciled’ in that country. But what does this actually mean?

Domicile does not mean ‘resident’ or ’a national of’ a country. It is far more meaningful, and refers to the strongest connection a person has to a country. It is acquired at birth, with a child’s domicile being that of the father if their parents are married, and of the mother if not.

As stated by Baroness Hale in Mark v Mark (2005) UKHL 42, “a person must always have a domicile but can only have one domicile at a time. It governs the capacity to marry or to make a will relating to moveable property”, and is a highly important “connecting factor in family law’.

Phew! So we’re pre-decided a domicile?

Not necessarily; you can choose your own domicile, but it’s not a case of simply selecting a country you like. To acquire a new domicile, a person must reside in that country with the fixed intention of settling there and making it their home indefinitely, compared with residence, which simply refers to a person’s physical presence in a country as an inhabitant of it.

You can choose to ‘abandon’ your domicile but this can only happen when a person leaves the country with no intention of ever residing there again.

A divorcing couple had trouble arguing their domicile. Although they had moved overseas with no intention of ever returning to England, they had however reserved burial plots for themselves in England and therefore could not argue that they had abandoned England as their domicile!

So domicile is much more than just ‘living’ somewhere. You can be domiciled in one country but habitually resident in another. Deciphering whether a couple or party is domiciled or habitually resident can be complicated as the criteria for both are very similar. In domicile disputes within English Courts, the specific circumstances of each divorcing couple are carefully considered before a ruling is made.


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