With more foreign travel and residence abroad, families are more international than ever before. This is surely enriching for both parents and children alike, but it can add an extra layer of complication on divorce and separation.
If you marry someone from another country and then divorce, which law applies? The law in your country, the law in their country, or the law of the country in which you are living? You may quickly find yourself in a confusing situation and it is imperative to take specialist legal advice without delay. The value of cross-border legal differences can be significant. Whilst British courts can award ex-wives maintenance for life, many other countries are less favourable to non-working and less wealthy spouses.
The appeal case of Ray v Sekhri  EWCA Civ 199 (http://www.bailii.org/ew/cases/EWCA/Civ/2014/119.html) is an example of how matters can escalate when a divorcing couple argues about which country should have jurisdiction to deal with their divorce. Unfortunately disputes of this type can sometimes turn into very lengthy and hard-fought court battles.
This area of law is complicated and the key concepts are ‘domicile’ and ‘habitual residence’.
Everybody has a domicile and can only have one at a time. There are two types of domicile. Domicile of origin is given at birth and is based on the domicile of the person upon who the child is dependent. This is presumed to be the father when still alive and living together with the mother.
Domicile of choice can supplant domicile of origin if a person resides in another country with the intention of continuing to reside there for an indefinite period, coupled with an absence of genuine intention to reside permanently in the country in which they were domiciled previously.
Habitual residence is defined as ‘a person’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration’. It is necessary that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
In Ray v Sekhri the British-born husband and Indian-born wife met and lived together in England. They married in India and lived in Singapore where the husband had obtained employment. They had a child, and shortly afterwards the relationship broke down. The wife started divorce proceedings in England and returned there with the child but was forced to return to Singapore pending an application to relocate as a result of child abduction orders.
The husband claimed that the English court did not have jurisdiction to hear the wife's divorce application as neither party was habitually resident or domiciled in the jurisdiction on the date of issue of the divorce petition.
The judge in the High Court found that the husband's domicile of origin was England. The wife had established a domicile of choice in England before meeting the husband and her domicile of choice had not altered as a result of the move to Singapore. The English court therefore had jurisdiction.
The husband appealed but his appeal was dismissed and the findings of the High Court were upheld. The judges in the Court of Appeal noted that “in her evidence to the court the wife described how, within a very short time of being in London, she regarded England as her permanent home….Her case was that the move [to Singapore] was only intended to be, or at all events understood by her to be intended to be, for a finite period of no more than two, or, at the most, three years, after which he and she would return to England where she always intended to reside and pursue her career in the longer term. Meanwhile, the husband’s relocation had been of “insufficient quality to establish a fresh domicile of choice in Singapore”.
To understand the urgency and complexity of these cases, international expertise is a must. At Anthony Gold, not only do we have considerable experience in dealing with international divorce cases, we also have an international network of specialist family law contacts who we can readily and urgently contact if the need arises for immediate advice. Time is often of the essence, especially in cases where more than one European country is involved.