This article traces the history of the subject, analyses the current law, and proposes reform to make divorce and financial remedies here less accessible to some categories of applicants.
Before the Matrimonial Causes Act 1856, jurisdiction for Parliamentary divorce followed the Ecclesiastical Courts’ criterion of residence. The current law is found in section 5 of the Domicile and Matrimonial Proceedings Act 1973. Perhaps the most easily-available ground of jurisdiction is the applicant’s (habitual) residence here for at least a year immediately prior to the application. The divorce decree opens the door to financial remedies, which are comparatively attractive to some applicants because of, eg, our law’s greater generosity to them and our greater reluctance to stick to ‘pre-nups’.
Under Part III of the Matrimonial and Family Proceedings Act 1984, it is now possible to make financial applications here if the divorce, and even financial orders as well, have been made abroad. Further heads of jurisdiction are available other than under the 1973 Act. Leave is required and the court must judge England and Wales an ‘appropriate venue’.
Given the pressure on family court time, it is suggested that the jurisdictional criteria be tightened for the benefit of those with a closer connection to our legal system.
The full article will be published in the March issue of Family Law.