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The UK has ratified a number of International Conventions dealing with International Family Law. Most importantly European Council Regulations, notably Brussels II (unifying the rules in relation to conflict of jurisdiction within the EU), have had a profound effect on Family Law in this Jurisdiction.

Jurisdiction

Brussels IIapplies in jurisdictional disputes with EU Member States save for disputes involving a “Related Jurisdiction, which is defined to mean Scotland, Northern Ireland, Jersey, Guernsey and Isle of Man.

Brussels II

The Court has jurisdiction under Article 2(1) of the Council Regulation on the

Following grounds:-

(a)The Petitioner and the Respondent are both habitually resident in England and Wales.

(b)The Petitioner and the Respondent were last habitually resident in England and Wales and the [Petitioner] or [Respondent] continues to reside in England & Wales.

(c)The Respondent is habitually resident in England and Wales.

(d)The Petitioner is habitually resident in England and Wales and has resided there for at least one year immediately prior to the presentation of the Petition.

(e)The Petitioner is domiciled in England and Wales and has been habitually resident in England and Wales throughout the period of at least six months ending prior to the presentation of the Petition.

(f)The Petitioner and the Respondent are both domiciled in England and Wales.

[Where no Court of a contracting state (including England and Wales) has jurisdiction under the Council Regulation:-]

(g) The court has jurisdiction other than under Council Regulation on the basis that no Contracting State has jurisdiction under the Council Regulation and the Petitioner/Respondent is domiciled in England and Wales on that date when the Petition issued.

Domicile and Matrimonial Proceedings Act 1973

Para 8 (1) Where before the beginning of the trial or first trial in any proceedings for divorce which are continuing in the court it appears to the court on the application of a party to the marriage

(a) that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and

(b) that the parties to the marriage have resided together after its celebration; and

(c) that the place where they resided together when the proceedings in the court were begun or, if they did not reside together, where they last resided together before those proceedings were begun, is in that jurisdiction.

Domicile and Habitual Residence

Domicile- The country which a person regards as their home country, whether or not they are currently living in that country.There are two types of “domicile”.A “domicile of origin” (the domicile of the father at the time of the person’s birth) and a “domicile of choice” which can be subsequently acquired.A special legal status is associated with domicile.A person may be able to get divorced in their country of domicile, even if they have not lived there during the marriage.

Habitual residence – the country of ordinary residence, i.e. living there voluntarily and for settled purposes (such as work, training, family life), apart from temporary or occasional absences. It is possible to have two habitual residences, but a person must spend an appreciable part of time somewhere to claim habitual residence there. In international abduction cases the term refers to the country regarded as the child's homeand in Brussels II, the centre of the child’s life.

Conflict of Law/Applicable Law to be Applied

LexFori – “the law of the forum” – English judges almost never apply foreign law in the context of divorce and ancillary relief applications, even between two foreign nationals.

Pre-Nuptial Agreements

Not binding, but will be a significant factor to be taken into consideration by a court adjudicating on financial claims following the dissolution of the marriage.

Such agreements need to be fair and reasonable at present date as well as at date of signing. There must have been proper financial disclosure, independent advice and together with the absence of duress.

Divorce

A year must have elapsed since the date of the marriage.

“Fault” based system- irretrievable breakdown is the sole ground and is established by fact of adultery, unreasonable behaviour, desertion or separation (2 years separation if both parties consent to the divorce or 5 years separation if one of the parties does not consent to the divorce).

Divorce is initiated by the filing of a petition.

Finances/Capital/Property

Following White, wives can generally expect generous capital awards in big money cases. Equality should only be departed from if there is very good reason for doing so e.g.

Shortness of marriage- Miller v Miller [2006]

Inheritance- only in cases where there is a surplus of assets see White [2000] and P v P [2005]

McFarlane and Miller (2006)

Illiquidity- P v P [2005]

Special Contribution- Cowan [2001] “stellar” contribution justified departure. Lambert [2002] - the special contribution doctrine is no longer to be followed save in the most exceptional cases, BUT Sorrell [2005] revisited the doctrine of special contributions circumstances held to be exceptional...The “spark” or “force” or “seed” of genius. Justified departure from equality.

McFarlane and Miller [2006] and Charman [2006] clarified the position providing that “special contribution” will only be a reason to depart from equality if it would be inequitable to disregard it. To be taken into account, such a factor must be “wholly exceptional” and / or “obvious and gross.

Needs exceed resources-

Equality will also be departed from in cases where the parties’ needs exceed the assets available for distribution i.e. where most of the capital is required to house the wife and children.

The court must consider whether it would be appropriate to make a “clean break” i.e. an order terminating the parties’ financial obligations to one another.

Finances/Maintenance

The court may order that either party to the marriage pay periodical payments to the other for such term as may be specified in the order.

An order for maintenance terminates on the payees remarriage or on the death of either party.

The court has the power to capitalise spousal maintenance.

Child Maintenance

In most cases, the Child Support Agency has jurisdiction, rather than the Courts.

Maintenance payments are determined by reference to a general formula.

A non-resident parent pays a basic rate as follows:

One child = 15% of net income.

Two children = 20% of net income.

Three or more children = 25% of net income.

Net weekly income of over £2000 (£104,000 per annum) is disregarded.

The mother’s income is also disregarded.

In certain circumstances “top up” orders are still available to the court.

Provision for scaling down maintenance if child/children spend more than 52 nights per annum with the absent parent BUT the court retains jurisdiction in cases where the absent parent resides outside the UK.

Cohabitants

There is no state legislation in this field.

Complicated rules of property, trust and contract law apply.

Civil Partnership/Gay Marriage

Governed by the Civil Partnership Act 2004 (CPA)

A Civil Partnership has often been said to be a civil marriage in all but name but there remains an important legal distinction between the two institutions. Rayden on Divorce summarises the position “marriage acquires the participation of two persons one a man the other a woman.”

The Matrimonial Causes Act 1973, s11, specifies that a marriage shall be void “if the parties are not respectively male and female”.

Notwithstanding the differences in terminology civil partners enjoy the same rights and are subject to the same responsibilities as married couples.

“Overseas relationships” are given recognition under the CPA but same sex marriages in jurisdictions such as Belgium, the Netherlands and Spain will be recognised as Civil Partnerships rather than marriages.