In family law, Jurisdiction simply means which country or court has the legal power to hear and determine a case. For families with ties to more than one country, jurisdiction becomes a key issue and can often be dealt with at the very beginning of divorce, financial or child proceedings.
Relationships with an international dimension include cases where:-
– The spouses are of different nationalities
– The marriage took place abroad
– Children spend time living in more than one country
These are just some examples.
Choosing where to begin divorce proceedings will depend on which country has jurisdiction. If a court has jurisdiction, it means that it has the power to deal with that particular case. If it hasn’t, the claim must be raised in a court which does. Factors that determine jurisdiction include habitual residence, domicile, last habitual residence of the couple or the child’s ordinary residence.
Jurisdiction exists to avoid making orders that conflict with those made by courts in another country. It also attempts to ensure that proceedings are brought in the most appropriate forum.
In children matters, jurisdiction generally follows where the child is habitually resident. In divorce cases, jurisdiction follows a set of legal criteria based on residence or domicile. Without proper jurisdiction, the court cannot make decisions about divorce, finances, or child arrangements.
Courts in England and Wales will NOT be able to make decisions about divorce or finances if they do not have jurisdiction to deal with the case.
What does jurisdiction mean in family law?
Jurisdiction means which court has the power to deal with the case. It is important because if a court does not have jurisdiction, it cannot grant a divorce, make financial orders or tell parents what to do with their children. Each country has rules which identify which of its courts have jurisdiction to deal with families which have links to more than one country.
How do UK courts decide if they have jurisdiction for divorce?
Courts look to several statutory tests which link jurisdiction to habitual residence or domicile. Specifically, they consider whether England and Wales is the habitual residence of one or both spouses, the domicile of one spouse or where the couple last lived together. Only if one of these boxes can be ticked will the English court have jurisdiction
What does habitual residence mean?
Habitual residence is where a person lives on a regular basis. It is not necessarily determined by nationality. In children’s cases, it is where the child’s life is centred and is assessed factually. It is a key factor in determining jurisdiction, especially in child cases.
Can more than one country have jurisdiction over my case?
Yes. Because international families often have connections to more than one country, it is not unusual for the laws of more than one country to allow their courts to deal with a case. Where this occurs, deciding where to commence proceedings can be critical to the outcome of financial proceedings in particular, as different countries can produce vastly different results.
What if my spouse applies for divorce in another country?
It may give rise to a dispute about jurisdiction. In determining which country has jurisdiction, the courts will look at which country has the closest connection to the marriage. The country where proceedings are issued first can also be relevant. Successfully contesting jurisdiction can have a major impact on financial and children’s outcomes.
Who decides jurisdiction in children’s proceedings?
If your children live in England or Wales and spend time living in another country jurisdiction will normally be in England and Wales. We deal with jurisdiction in child cases under international treaties as well as domestic law. The main treaties are the Hague Convention and Brussels II, which do much to regulate jurisdictional issues.
Do parents get to choose which country deals with children’s disputes?
No. Unlike divorce cases, jurisdiction is based on legal criteria rather than choice. Both parents can’t agree to move a child’s case to another country if the child is habitually resident in England and Wales.
Can jurisdiction be challenged?
Yes. A party to the proceedings can challenge jurisdiction by asking the court to rule that it has no jurisdiction to hear the case or that another country would be a more appropriate forum to deal with the matter. Jurisdiction can often be quite technical and involves principles of international law.
Why is jurisdiction so important in family law cases?
If more than one country has jurisdiction to deal with your case, the laws of those countries could produce very different outcomes. This is particularly so for financial claims. Identifying jurisdiction at the beginning of a case can be crucial to protecting your clients’ interests.