What is habitual residence in divorce?
The term habitual residence often crops up in children, divorce, and financial court proceedings. For instance, either party or any dependants must be domiciled or habitually resident to get a divorce in the family courts of England and Wales. It also affects whether or not the Court of England and Wales has the jurisdiction to deal with the divorce.
What is habitual residence?
Albeit a complex legal concept, in simple terms, it means the place where you and your child ordinarily or habitually live and have the closest ties.
Broadly speaking, it is where you primarily live or intend to stay settled for a foreseeable amount of time. Furthermore, the person can only be habitually resident in one location at a time.
Habitual residence in divorce proceedings
If you can file a divorce petition in England or another country rests on whether or not there is jurisdiction to do so. Depending on your jurisdiction, the court will confirm if it has the legal power to deal with the application regarding divorce.
To get a divorce in the UK, the applicant must demonstrate that they live and work in the UK, have a home address here, and through day-to-day activities. Temporary absences do not affect the habitual resident status. Importantly, the individual should start divorce proceedings in a country where they are likely to get the desired outcome.
Habitual residence for filing a divorce petition in English and Welsh courts
The courts of England and Wales can deal with the divorce petition if the applicant meets the following criteria
- Petitioner, the person applying to the court, and the respondent, the person receiving the application, are habitually resident in England and Wales
- Both parties were habitually resident in England and Wales, and one of them still resides there
- The respondent holds habitually resident status in England and Wales
- The petitioner is habitually resident in England and Wales and has resided there for at least 12 months before filing for divorce
- The petitioner is domiciled in England and habitually resident for at least six months before making the divorce petition
- Both parties are domiciled in England and Wales
Habitual Residence and Non-British Parents
Many people buy into the illusion that the children’s law does not apply to the children of non-British parents. It is wrongly assumed that the parent and child’s home country should decide the future arrangements.
To clarify, nationality does not determine whether or not the English court has jurisdiction over the child, instead, the child’s habitual residence. If you hold IRL, the English court could decide the child’s future arrangements in case of divorce. It applies even when both parents do not have a British nationality or a settled status.
