Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Sunday, May 22, 2022

New Post-Brexit Divorce Jurisdiction Law in England

From Family Law:

A recent decision of the CJEU has addressed the definition of habitual residence for divorce jurisdiction under Art 3 of BIIA.  It confirms the interpretation hitherto held in England that a party can have only one habitual residence at one time but may have several residences. But it has also given a strong indication that habitual residence has to be continuous for the requisite period before the date of issuing of proceedings and not just on the date of issue.  

However, the majority of professional opinion allegedly being that habitual residence was only necessary on the date of issuance. The Ministry of Justice relied on this interpretation in drafting England’s new post Brexit divorce jurisdictional law, on the basis of following EU law. 

The significant difference in interpretation looks set to have ramifications from the perspective of EU Member State. England may well now be more open and welcoming because of its wider divorce jurisdiction, but this will cause problems for recognition and enforcement of English orders in an EU Member State.

Read more here.

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