A brief stay in another country is unlikely to be sufficient to establish habitual residence but there is a necessity to consider a families international travel and location when preparing for divorce proceedings explains leading family law firm.

There is an increasing trend of families having international connections, with stints in various countries for work and family reasons.  The case of AJ v DM illustrates the importance of establishing habitual residence in the appropriate country in the context of divorce proceedings and how a brief stay in another country is unlikely to be sufficient to establish habitual residence. The case also highlights the necessity of considering the desired outcome of any proceedings and preparing the appropriate strategy from the outset.

The facts of the family law case

The basic facts of the above case are that the husband was born in Ireland, the wife in England, both were citizens of their respective countries of birth as well as Australia. They met in Australia in 2014, married in 2015. The wife fell pregnant in early 2016 and whilst on holiday in England, decided she would like to stay throughout her pregnancy. The parties subsequently separated and the husband returned to Ireland from Australia so he could be closer to their child.

The parties later reconciled and the husband moved to England, taking out a 12 month lease on a property. The husband then secured a CEO role for three years in St Lucia so the parties once again re-located together. The marriage broke down and whilst the wife was on holiday in England in April 2018, she petitioned for divorce and issued financial proceedings.  The wife petitioned on the basis of residual jurisdiction (sole domicile) provided by Article 7 of Council Regulation (EC) No. 2201/2003. There are, however, restrictions on the financial relief available if the application is based residual jurisdiction.  In this case, the wife was consequently unable to pursue a claim for maintenance from the husband, which she had been hoping to do. She therefore applied to amend her petition to be based on habitual residence instead. She had returned to St Lucia by this time.

Considerations when establishing habitual residence

Mr Justice Cohen had to consider whether or not the wife was able to establish habitual residence at the time she petitioned in April 2018. As the wife had simply returned to England on holiday and there was no pre-planned or purposeful relocation, the petition could not be amended and there was no legitimate basis for a maintenance order. There are however, child proceedings also taking place whereby the wife is seeking leave to remove their child and return to England. If her application is successful, she may make a further application for financial provision for the benefit of their child under Schedule 1 of the Children Act 1989, which may include maintenance.

International elements to divorce are increasingly common

Divorce cases with international elements are becoming increasingly common but can be particularly complex. Issuing divorce proceedings on the incorrect basis and failing to consider the appropriate strategy from the outset can have a detrimental impact on the case, wasting significant costs and failing to achieve the desired outcome. Before taking any steps to start divorce proceedings, advice from a specialist family solicitor with technical knowledge and specific experience dealing with international matters should be sought so an appropriate strategy can be considered and implemented.