Habitual Residence and Domicile
Habitual residence is crucial in establishing in which country’s Court your divorce can be heard. Deciding where to initiate divorce proceedings is one of the first and most crucial steps. The choice of jurisdiction can greatly influence the divorce process from the division of assets to childcare arrangements and the duration of the proceedings. Here is a straightforward breakdown of when you can file for divorce in England and Wales:-
- If both spouses were last living together in England and Wales, and one still lives there.
- If the non-petitioning spouse (Respondent) lives in England and Wales.
- If lodging a joint application for divorce at least one spouse lives in England and Wales.
- If you have lived in England and Wales for at least a year before lodging your application.
- If you are domiciled in England and Wales and have lived there for at least 6 months before applying.
- If either spouse is domiciled in England and Wales.
Habitual residence means the country in which a person has their primary and permanent home. To be habitually resident a person has to be settled in that country, including where they live, work and have family ties.
In respect of domicile, there are several type
- Domicile of origin assigned at birth and typically derived from a parent.
- Domicile of choice – this is where you have moved, to live in that country permanently or indefinitely.
- Domicile of dependence – this applies to those legally dependent on another such as children, and is connected to the domicile of that parent.
With regard to a domicile of choice, the following factors as well as where the parties habitually reside, will be considered to establish the question of domicile
- Contents of Wills
- Purchase of land or grave
- Prospects of succeeding to a title or estate
- Changing nationality or religion
- Employment
- Paying income or inheritance tax
- Where you live during your marriage
- Where your property/assets are located
- Your nationality
- Where you married
It can be a case that there are a number of possible jurisdictions based on you and your partner’s habitual residence or domicile. In these circumstances, it is very important to seek detailed advice on which of those jurisdictions is the most appropriate and beneficial for you. It is a complex business and you need to know what options are available to you to enable you to reach the most advantageous outcome for you, your finances and your children.
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