What is Jurisdiction?

In law, jurisdiction refers to whether a Court has the legal power and authority to decide a dispute and apply its laws to a particular case. In everyday terms, it means whether the Court can make decisions which will affect you and your family.

Every country has its own legal system and specific laws which govern jurisdiction. Within the UK, there are three separate legal systems: England and Wales, Scotland and Northern Ireland. When considering matters relating to your family, it is important to establish and understand which court will have the jurisdiction to determine the issues.

Jurisdiction and divorce or dissolution

To obtain a divorce or dissolution through the Courts in England and Wales, you will need to show that you and/or your spouse are either habitually resident or domiciled in England and Wales.

Habitual residence is usually fairly simple to determine. You are considered to be habitually resident in a country if it is where your life is mainly based. This can be determined by assessing factors such as where you spend the majority of your time, where you work, where your children go to school and so on.

Establishing where you are domiciled can sometimes be more complicated. You will have your domicile of origin, which is usually the country where you were born; however, you can replace this with a domicile of choice. To establish a domicile of choice, you must have the intention to permanently settle in the new country and not intend to return to your domicile of origin, or another country on a permanent basis. Domicile doesn’t always match where you live and is a legal concept that depends heavily on the facts.

If you were born in England or Wales and still live here, you’re likely both habitually resident and domiciled here.

In limited circumstances, it is possible to obtain a divorce through the Courts in England and Wales where neither you nor your spouse is habitually resident or domiciled in England or Wales, but you can show a sufficient connection. However, such applications are very rare and are usually used as a last resort where divorce cannot be obtained in other jurisdictions.

The Courts in England and Wales will only be able to deal with financial claims arising from the marriage in cases where they have jurisdiction over the divorce. Therefore, if you are unable to obtain a divorce in England and Wales, you cannot ask the Courts to address your finances, except in highly specific circumstances.

It is possible that there may be other Courts, in addition to the Courts in England and Wales, which have the jurisdiction to grant a divorce or dissolution in respect of your marriage or civil partnership, and it may be necessary to obtain advice from lawyers working in other jurisdictions to understand where it would be best for you to issue proceedings.

If you are unsure as to whether the Courts in England and Wales will have jurisdiction in relation to your divorce or dissolution, our team will be able to discuss the specifics of your circumstances with you and advise further prior to your divorce or dissolution application.

Jurisdiction and child arrangements

Jurisdiction in relation to child arrangements differs from that for divorce. You may be able to apply to the Court for a Child Arrangements Order concerning your child(ren) even if you are not personally habitually resident or domiciled in England and Wales, provided the child(ren) are habitually resident in England or Wales.

In establishing whether a child is habitually resident within England and Wales, the Court will focus on the circumstances of the child(ren) and assess the degree of integration they have within their social and family environment. This can include factors such as their day-to-day routine, schooling, being registered with a GP, and community/family involvement.

If a child is considered by the Court to be habitually resident within England or Wales, the Court will have the jurisdiction to decide upon matters including:

• With whom the child should live;
• How much time the child should spend with each parent, and the terms of this;
• Whether the child can travel abroad;
• Specific issues relating to matters such as schooling, medical care, religion and the child’s name.

How Sousa Law can help

At Sousa Law, our team of experienced family solicitors provide advice on a wide range of family matters, including divorce and dissolution, financial settlements, pre- or post-nuptial agreements and child arrangements.

We understand that questions of jurisdiction can be complex, particularly when multiple countries or legal systems may be involved.

Our approachable and knowledgeable team will guide you through your options, explain the implications of jurisdiction for your case, and provide practical, tailored advice so you can make informed decisions with confidence.

Whether your matter is straightforward or involves more complex international considerations, we are here to guide you through with expertise and compassion.

If you would like to get in contact with us regarding your family law matter, please reach out to our team today. We are here to provide clear, practical advice tailored to your circumstances.