In a case decided in 2014 Sir James Munby, the President of the Family Division of the High Court of Justice, provided the following extremely helpful and straightforward recitation of the basic legal principles that apply in England and Wales concerning divorce jurisdiction:1. In the circumstances, and bearing in mind in particular that this judgment will be read by many unfamiliar with our court system, I think it important to give a judgment more detailed in some respects than might otherwise be appropriate.
2. By way of preliminary, I should explain that within the United Kingdom there are three separate legal systems. Scotland and Northern Ireland each has its own legal system. I am sitting as a judge of the courts of England and Wales (what for convenience I shall refer to as “the English court”) applying the law of England and Wales (what for convenience I shall refer to as “English law”).
English law: divorce proceedings in the English court3. An application for divorce is made in the English court by an originating process called a petition. The person applying for divorce is called the petitioner; the other spouse is called the respondent. An order for divorce is called a decree. The first decree is called a decree nisi: it is a provisional order which does not itself terminate the marriage. The second decree is called a decree absolute: it is a final order which brings the marriage to an end.
4. The first thing I must consider is the jurisdiction of the English court in matters of divorce. For reasons which will become apparent in due course, it is important to distinguish two different senses in which the word jurisdiction is used. The first, what I will call “jurisdiction to entertain the petition”, goes to the logically prior question of whether the English court has any jurisdiction at all to receive, hear and consider the petition. The other, what I will call “jurisdiction to grant a decree”, goes to the question of whether the English court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce. I will consider these in turn.
5. Jurisdiction to entertain the petition is conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:
“The court shall have jurisdiction to entertain proceedings for divorce … if (and only if)(a) the court has jurisdiction under the Council Regulation; or
(b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.”The Council Regulation is defined in section 5(1A) as meaning:
“Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.”6. So far as is material for present purposes, Article 3 of the Council Regulation provides as follows:
“1 In matters relating to divorce … jurisdiction shall lie with the courts of the Member State(a) in whose territory:
– the spouses are habitually resident, or
– the spouses were last habitually resident, insofar as one of them still resides there, or
– the respondent is habitually resident, or
– in the event of a joint application, either of the spouses is habitually resident, or
– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.
2 For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”
In each of the cases before me jurisdiction was sought to be founded in accordance with, in most of the cases, the fifth or, in a small minority of the cases, the third limb of Article 3.1(a). So, in every case it was being asserted that either the applicant (the petitioner) or the respondent was habitually resident in England and Wales.7. Jurisdiction to grant a decree, assuming that the English court has jurisdiction to entertain the petition, depends upon section 1 of the Matrimonial Causes Act 1973, which so far as material for present purposes provides as follow:
“(1) … a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition … ”