ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
• one party wants to start a divorce, has lived in England and Wales for six months, and is also domiciled here; • both parties are domiciled in England and Wales; and • one of the parties is domiciled in England and Wales. Jurisdiction in relation to the marriage of same- sex couples is regulated by: • the DMPA 1973, Section 5(5A) and Sch A1; • the Marriage (Same Sex Couples) (Jurisdic - tion and Recognition of Judgments) Regu - lations 2014, SI 2014/543 (as amended by the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc) (EU Exit) Regulations 2019, SI 2019/495; and • the Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regula - tions 2022, SI 2022/237). These laws import the same jurisdictional requirements for the dissolution of the partner - ship/marriage, albeit with one important addi - tion. Same-sex couples who marry in England or Wales, but remain or become habitually resident/ domiciled in another country, may not be able to end their marriage in that country if it does not recognise the existence of the relationship. Eng - land and Wales is therefore a “jurisdiction of last resort” so that same-sex couples may have their case heard. The courts in England and Wales will be able to assume jurisdiction if the couple was married in England or Wales and where it is in the interests of justice to do so. Domicile, Residence and Nationality Domicile is a relevant factor in determining juris - diction as set out in the DMPA 1973. A person can only ever have one domicile at one time. A
person’s country of domicile is the country they consider home; however, their domicile can change with time. By way of example, a person’s “domicile of origin” is normally the domicile of their father when said person was born and is commonly the country where the person was born. This may change, owing to a “domicile of dependence”, if the person moves countries when they are under the age of 18 with their parents. A “domicile of choice” can be obtained through physical presence in a country in com - bination with an intention to permanently remain there. Residence – and, in particular, habitual residence – is a relevant factor in determining jurisdiction as set out in the DMPA 1973. England and Wales (as part of the UK) have recently left the EU but it is considered likely that they will continue to use the same definition of habitual residence as was used in the EU when they departed. If a person is habitually resident in a country, this means that their day-to-day life happens in that country. Nationality is often used interchangeably with citizenship, but its definition is actually a little bit wider. A British citizen is a passport hold - er, but a British national would include various classes of British (overseas) citizens. If a person changes nationality, this may be one of the fac - tors in determining whether they have an inten - tion to permanently remain in that country, so – even though nationality is a completely distinct concept from domicile – there is a link between them. Apart from this link, it has no relevance to jurisdiction. Contesting Jurisdiction An application may only be disputed on limited grounds now that there is no-fault divorce. One of these is jurisdiction. Others include the validity
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