Difference between Habitual Residence and Domicile in Divorce

Author:
Agata Osinska
Associate Solicitor, Family Law and Divorce, Polish Team
Date:
18/11/2019

We explain the difference between habitual residence and domicile below, but first it’s important to understand what “jurisdiction” is and why this matters to habitual residence and domicile.

In some divorce cases, you have a choice to apply in a few different jurisdictions. You need to make sure that you pick the one that protects your interests the most.

This is why establishing jurisdiction is so important and could be disputed by your former partner so they can achieve a better outcome for themselves.  

If you’re not sure whether you are domiciled or if you have habitual residence or which jurisdiction you should get divorced in, contact our Divorce Solicitors for initial advice.

Call us on 08002605010 or request a callback and we will help you.

Jurisdiction in Divorce Explained

In order to get a divorce in England or Wales, you need to satisfy certain criteria. One of them is jurisdiction. The jurisdiction is the authority given to a Court to deal with a certain type of case or one in a certain geographical area. The UK is split into three jurisdictions. They are:

  • England and Wales
  • Scotland
  • Northern Ireland

The Court needs to confirm that it has the legal power to deal with your application for divorce, depending on your jurisdiction. Our Divorce Solicitors deal with divorces in England and Wales and can advise you on the best jurisdiction for your divorce.

There are a few categories that are listed when considering if you meet the jurisdiction requirements. They are:

  • The person applying to the Court, known as the Petitioner, and the person receiving the application, known as the Respondent, are habitually resident in England or Wales

  • The Petitioner and Respondent were last habitually resident in England or Wales and one of them still resides there
  • The Respondent is habitually resident in England or Wales

  • The Petitioner is habitually resident in England or Wales and has resided there for at least a year immediately before making the divorce petition

  • The Petitioner is domiciled and habitually resident in England or Wales and has resided there for at least six months immediately before making the divorce petition

  • The Petitioner and Respondent are both domiciled in England and Wales (only for marriage, not civil partnerships).

You also need to know the difference between habitual residence and domicile in order to decide which one of the above conditions applies to you and whether you can get divorce in the jurisdiction of England and Wales or if you should apply to another jurisdiction.

This can be quite tricky with people that travel a lot or have international aspects to their divorce. It is crucial to establish the right jurisdiction as it can significantly impact the divorce case.

Habitual Residence Explained

Habitual Residence is often confused with Permanent Residence. Habitual Residence does not need any documents from the Home Office to prove it. But, if questioned you need to have proof to confirm your Habitual Residence.

You are a habitual resident of a country if your day to day life happens there and you intend to stay there long term. You can think of it as a place that you are connected with the most and where your day to day activates happen. That means you work there, your children go to school there, you own a property and are settled there.

In most divorce cases this is quite straightforward. But there are some situations which create a doubt and uncertainty. Examples of this are when people work from a few different countries and travel for work a lot or if they own a few properties.

This is when you need to give a detailed history to your Divorce Solicitor so we can decide whether the Court will accept that you are habitually resident if your partner is defending this position.

Domicile Explained

Domicile means your main permanent place where your home is. You may live there or intend to return there in the future.

When people are born, they automatically acquire their domicile. This is based on where their father lived if he was married to their mother or where the mother lived if she was unmarried or the father died before they were born. 

It does seem quite obvious, but your domicile can be moved if you moved to a different country if you set up your life and home there.

This can be quite straightforward if you were born and lived in England or Wales all your life as you will be both habitually resident and domicile here, but in many divorce cases it’s not that obvious.

If you’re not sure about which jurisdiction you should get a divorce in and whether you are habitually resident and domiciles in England and Wales, we can help you. Remember, choosing the right jurisdiction to divorce in can offer you better protection so contact our expert Divorce Lawyers for an initial discussion.

For initial advice call our Family Law & Divorce Solicitors

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