This chapter deals with the European law governing jurisdiction in divorce and the international law concepts that are a feature of this area of law. It discusses the increasingly important question of jurisdiction in divorce proceedings, and explains the concepts of ‘domicile’which includes domicile of origin, domicile of dependence, and domicile of choice. It also explains the concept of ‘habitual residence’ as how both domicile and habitual residence apply to divorce proceedings. There is finally an outline of jurisdiction in practice and the rule that if the domicile of a client is uncertain then habitual residence is usually easier to establish. There is some mention of Brexit.
Chapter
Jonathan Hill
The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.
Chapter
N V Lowe, G Douglas, E Hitchings, and R Taylor
Many relationships are now transnational ones between parties from different cultures and countries. The breakdown of these relationships means that increasing numbers of children are caught up in cross-border disputes. Such disputes raise a variety of issues, including which court should hear any question concerning the children’s upbringing, what happens if each parent brings separate proceedings at the same time, and about the enforceability of orders, for example that a parent living in one country should see their child in another country. Now that the UK has left the European Union the key international instrument for dealing with these issues is the 1996 Hague Convention on the Protection of Children which provides basic rules of jurisdiction for hearing cases concerning children and a consequential system of recognition and enforcement of decisions concerning parental responsibility. This chapter discusses the following aspects of the 1996 Convention: its aims, scope, the jurisdictional rules, applicable law with regard to parental responsibility, recognition and enforcement, the placement of children abroad and safeguarding rights of access.
Chapter
N V Lowe, G Douglas, E Hitchings, and R Taylor
This chapter concerns parental child abduction, that is, where one parent takes the child to another place or jurisdiction without the other’s consent. The chapter discusses the issue both where the abduction is within the UK and where the child is taken to a foreign jurisdiction. The chapter begins by looking at the mechanisms to prevent abduction. It then considers the inter-UK position under the Family Law Act 1986 followed by an examination of the international position first with regard to abductions to and from ‘non-Convention countries’ and then with regard to those governed principally by the 1980 Hague Abduction Convention. In the latter regard it discusses the concepts of rights of custody, wrongful removal and wrongful retention and habitual residence. It then examines the making and refusing to make orders for the child’s return and ends with a discussion about the position with regard to access.
