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David Hodson on International Family Law: Jurisdictional bases in new draft divorce petitions

Date:18 MAY 2011

David HodsonAttached to the new FPR 2010 is a draft divorce petition, as it was to the 1991 Rules. However it will cause confusion and extra work for lawyers and courts as it does not include the separate Article 3 Brussels II jurisdictional grounds. It simply invites a tick box to state that there is jurisdiction. This is not good enough in the many international cases now before the English courts. It should be amended in the new rules quickly.

Under English law, there are several possible bases for jurisdiction for a divorce. They are found in Article 3 of Brussels II. They consist of several different, and often overlapping, grounds based primarily on simple or habitual residence. There is also the basis of joint domicile. It is only if none are available and no other EU state has jurisdiction that one can rely on the so-called residual ground of sole domicile.

When Brussels II first became law and as a matter of good practice, all possible Art 3 jurisdictional grounds were set out on the draft divorce petition. The relevant ones relied on were ticked. It was prudent to tick as many as possible. Case law such as R v R (Jurisdiction: Domicile) [2006] 1 FLR 389 made clear that ultimately the court had power to substitute its own grounds if they were found and the relevant boxes were not ticked. Nevertheless it was good practice to tick all those which could apply.

The new FPR 2010 are a breakthrough in that they bring international aspects of family law right into the mainstream of procedure. The Drafting Committee have done an excellent job, as I have written elsewhere, in fully covering international aspects throughout the Rules and Practice Directions. But the draft petition does not require the petitioner to say which of the Art 3 grounds are being relied on. I criticised this at the time the forms were published, as I felt they would lead to more work and delays. So it has proved.

I and my colleagues at The International Family Law Group have now had a couple of disputed jurisdiction cases since 6 April where it is wholly unclear what Art 3 ground is being relied on. There are bound to be plenty more cases given the significant number of European families in England and also, frankly, the lack of awareness of these issues by those completing the divorce petition notwithstanding the excellent explanatory notes. Of course one can ask for better particulars and in default seek a court order. But this should be unnecessary. The petition should say.

It will not apply in the vast majority of cases where simple joint habitual residence suffices. Nevertheless the EU is continually telling us how many international family divorces occur each year. English courts have many European family divorces each year, invoking Art 3. English courts and lawyers need to know which part of Art3.

I urge a quick change to require petitions to state which Art 3 jurisdictional basis is being relied on. It will reduce work and costs when these issues arise.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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