Jurisdiction and Forum Disputes

When a Court Here Has Jurisdiction

Jurisdiction is whether a court may hear your case at all; forum is which of the courts that could hear it should do so. The question arises where you and your husband, wife or civil partner have connections with different countries.

For a marriage of a man and a woman, section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 gives the court jurisdiction over divorce or judicial separation if, and only if, on the date of the application:

• both of you habitually resident in England and Wales
• both of you last habitually resident here, one still residing here
• the respondent habitually resident here
• in a joint application only, either of you habitually resident here
• the applicant habitually resident here and resident here for at least a year immediately before applying
• the applicant domiciled and habitually resident here and resident here for at least six months immediately before applying
• both of you domiciled here, or either of you domiciled here

Nullity has its own list in section 5(3). For a marriage of a same sex couple, Schedule A1 to the same Act gives jurisdiction under regulations made under paragraph 5 of that Schedule, and regulation 2 of the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014 sets out the habitual residence grounds and a ground where both of you are domiciled here. Domicile of one of you alone is a fallback only: paragraph 2(1)(b) of Schedule A1 needs it to be the case that no court has, or is recognised as having, jurisdiction under those regulations. For a civil partnership, regulation 4 of the 2005 Regulations and section 221(1) of the Civil Partnership Act 2004 work the same way.

The Act defines neither habitual residence nor domicile. Issuing and serving the application is covered on our international divorce page.

Stays Where Proceedings Are Continuing Abroad

Since 11.00 pm on 31 December 2020 the former EU rules on concurrent cases no longer apply. For proceedings begun here since that time, the question is decided under Schedule 1 to the 1973 Act, whichever country the other proceedings are in. The old rules still apply where the court was seised before that moment. For a civil partnership, rule 7.33 of the Family Procedure Rules 2010 points the stay question to rules made under sections 75 and 76 of the Courts Act 2003 rather than to Schedule 1.

Paragraph 7 of Schedule 1 makes it your duty, as applicant or as a respondent who asks for relief, to give the court particulars of proceedings you know to be continuing in another jurisdiction in respect of the marriage, or capable of affecting its validity or subsistence, before the trial begins.

Where the case here is a divorce, paragraph 8 makes a stay obligatory on a party's application before the trial begins, if divorce or nullity proceedings for the same marriage are continuing in a related jurisdiction (Scotland, Northern Ireland, Jersey, Guernsey or the Isle of Man), you resided together after the marriage, that jurisdiction is where you resided together when the case here began or last did so, and either of you was habitually resident there throughout the year ending with the date on which you last resided together before the case here began.

Paragraph 9 gives a discretion in every other case, and again before the beginning of the trial, unless the court declares that a party failed the paragraph 7 duty, in which case the timing limit falls away: the court may stay the case here where proceedings about the marriage are continuing elsewhere and the balance of fairness, including convenience, favours those going first.

Where the stay is by reference to proceedings in Scotland, Northern Ireland, Jersey, Guernsey or the Isle of Man, paragraph 11 stops the court making maintenance pending suit for a spouse, periodical payments or a lump sum for a child, a section 8 order or an order restraining the removal of a child in connection with the stayed proceedings, and an order already made lapses after three months, unless the court considers it necessary to deal with circumstances needing to be dealt with urgently. Where the stay favours any other country, the three month rule and the sub-paragraph (2) and (3) bars do not apply, although paragraph 11(4) still bars a relevant order so far as the case is stayed in part, and the stay itself halts the case here, so any application for financial remedies has to be planned alongside the stay question.

Children: Where the Application Belongs

Applications about children follow a different code. Section 2 of the Family Law Act 1986 stops a court here making a section 8 order under the Children Act 1989, such as a child arrangements order, unless it has jurisdiction under the 1996 Hague Convention or, where that Convention does not apply, the question arises in or in connection with matrimonial or civil partnership proceedings and the section 2A condition is met, or the section 3 condition is met: the child is habitually resident here, or present here and not habitually resident in any part of the United Kingdom, and in either case jurisdiction is not excluded because matrimonial or civil partnership proceedings about the parents are continuing in Scotland or Northern Ireland.

Article 10 lets a court hearing the parents' divorce deal with a child habitually resident in another Contracting State only if its own law permits, and only where one of the parents is habitually resident in England and Wales when the proceedings begin and one of them has parental responsibility, the parents and anyone else with parental responsibility accept that court's jurisdiction, and it is in the child's best interests.

Article 7 keeps jurisdiction with the State of the child's former habitual residence after a wrongful removal or retention, until a habitual residence is acquired elsewhere on the article's conditions. Section 41 of the 1986 Act treats a child under sixteen who was habitually resident in England and Wales, and is taken or kept outside it without the agreement of everyone entitled to decide where the child lives or in breach of a court order, as still habitually resident here for a year. A removal or retention abroad is dealt with on our international child abduction page. If a child is in immediate danger, call 999, and the National Domestic Abuse Helpline is on 0808 2000 247.

Section 5 of the 1986 Act also lets the court refuse an application already determined abroad, and stay one where the matter is better dealt with abroad. A parent who wants to move abroad with the child should read our international child relocation page.

Evidence and Common Problems

Jurisdiction is decided on facts, and the facts have to be proved. The court needs to see where each of you has actually lived and for how long, and what ties you keep here: home, work and schooling. For a child the same picture is drawn around the child, and we obtain any documents issued by a court abroad.

The problems we see most often:

• issuing here without a ground: the court cannot entertain an application that falls outside section 5
• treating the children as part of the divorce: a section 8 order needs its own jurisdiction under section 2 of the 1986 Act

Court fees change, so we do not quote them: the amounts and help with fees are on the GOV.UK court fees page and the divorce application page. Where the outcome affects permission to stay in the UK, see our family immigration pages.

How a Forum Dispute Is Decided

1. We map your connections with each country against the grounds in the 1973 Act, the 2004 Act or the 1986 Act.
2. We advise on where and when to issue, and give the court the particulars of foreign proceedings that paragraph 7 requires.
3. Where proceedings abroad appear, rule 7.33 requires the court to give directions for a hearing of the paragraph 9 stay question, or, for a civil partnership, the question under rules made under sections 75 and 76 of the Courts Act 2003. A paragraph 8 stay is asked for by application, and a children stay under section 5 of the 1986 Act is dealt with in the children proceedings.
4. Both sides file evidence on the balance of fairness and convenience: witnesses, delay, expense and what each court can order.
5. The court grants or refuses the stay, which paragraph 10 lets it later discharge if the foreign case is stayed or concluded or a party delays.

When Legal Advice Is Especially Important

Advice matters most where:

• your husband, wife or civil partner has issued abroad, or is about to, and you have a ground here
• you could issue in more than one country and the approach to money could differ
• the children live in one country and a parent in another, or a child has been kept abroad
• the case here has been stayed and you need interim financial provision
• you want a financial order after an overseas divorce, which needs leave under Part III of the 1984 Act and recognition of an overseas divorce

How RakLAW Solicitors Can Help

We advise on jurisdiction and forum from our office at 42 Shad Thames in Southwark, near Tower Bridge, and we say early whether the court here can hear your case and whether a stay is likely. Where the case belongs abroad, we say so.

We prepare the particulars of foreign proceedings, apply for or resist a stay, and keep the children and financial applications in step. Our international family law hub covers the related work, our family law fees page explains how we charge, and you can book a free consultation or call 0203 345 2000. RakLAW is privately funded and does not offer legal aid.