ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
Domicile By contrast, the concept of domicile is a uniquely Brit ‑ ish and relatively inflexible legal concept in determin ‑ ing someone’s permanent home. As with habitual resi ‑ dence, a person may only be domiciled in one place at a time, based on three potential options: • domicile of origin; A person is born with a domicile of origin, based on the domicile of their parents. Which parent will depend primarily upon whether their parents are married, still alive and still together. Most commonly a child’s domi ‑ cile of origin will be the country in which they are born. A person retains their domicile of origin unless and until they acquire another domicile. A domicile of choice can be acquired by someone over the age of 16 living in a new jurisdiction with the intention to make that place a home permanently or at least indefi ‑ nitely. In assessing someone’s intention, the court will, similarly to habitual residence, be concerned with piecing together the prevailing factual matrix to form an assessment of the individual’s intention. • domicile of choice; and • domicile of dependence. A domicile of dependence is acquired when the domi ‑ cile of a child’s father changes, for example when a family relocates. Which parent’s domicile is acquired (or retained) by a child will again depend on the cir ‑ cumstances of the parents. Contesting Jurisdiction The remaining reason why a divorce may be contested is jurisdiction, in the absence of some issue of proce ‑ dure or validity. Where a party has more than one option, careful con ‑ sideration will need to be given to choosing where to apply for divorce, and indeed whether to accept a jurisdiction opted for by their partner. The choice can have very significant consequences as the divorce and financial processes and outcomes can vary enor ‑ mously between different jurisdictions.
• both parties to the marriage are habitually resident in England and Wales; • both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there; • the respondent is habitually resident in England and Wales; • in a joint application only, either of the parties to the marriage is habitually resident in England and Wales; • the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made; • the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made; • both parties to the marriage are domiciled in Eng ‑ land and Wales; or • either of the parties to the marriage is domiciled in England and Wales. The court can also deal with an application made by same-sex couples who were married in this jurisdic ‑ tion but live in a country which does not permit same- sex marriages where it is in the interests of justice for the court to do so. Residence Residence is contrasted by habitual residence. A party can, as a matter of fact, reside in multiple places at once, whereas someone can only be habitually resi ‑ dent in one place at a time. Habitual Residence Determination of habitual residence depends on the prevailing fact pattern. It is commonly thought of as referring to a person’s centre of interests. The court can consider all factors in determining a person’s centre; whether someone’s living situation is per ‑ manent or stable is one of the foremost questions. Other examples include: where a person’s assets are located, where they receive medical treatment, and whether they send their children to school in a given location. The court will draw together all the available informa ‑ tion to form an objective conclusion.
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