Date published: 01/06/23

Author: Elizabeth Simos, Consultant Solicitor 

Jurisdiction – what is it, and why is it important?

Jurisdiction refers to the authority of a court to hear and decide a case involving individuals from different countries, or where the legal issues involved have an international aspect. At it’s simplest, and in the context of divorce, international jurisdiction determines which country’s laws and courts will govern the divorce (and related) proceedings.

The importance of jurisdiction in divorce cases lies in the fact that different countries have different laws and procedures for divorce, and these laws can have a significant impact on the outcome of a case. For example, some countries may have laws that favour one spouse over the other, or that may affect the division of finances.

Moreover, jurisdiction can also affect the process of enforcing court orders or judgments, as different countries have different mechanisms for enforcing foreign judgments. Therefore, it is essential to consider the implications of international jurisdiction prior to filing for divorce or responding to a divorce application.

In divorce cases with international elements, it is important to instruct an experienced family lawyer who has expertise in international family law to navigate the complexities of international jurisdiction and co-ordinate advice from lawyers in other countries.

Overall, jurisdiction is a critical factor to consider at the outset of any divorce case that involves parties with international connections.

The first and perhaps most crucial question which arises, is what jurisdictional criteria applies in each country. Below is a brief summary of the jurisdictional criteria for divorce in England and Wales compared to Greece.

Divorce Jurisdiction in England and Wales

For cases instituted on or after 1 January 2021 (post ‘Brexit’), the grounds for divorce jurisdiction in England and Wales are as follows:

1. both parties to the marriage are habitually resident in England and Wales;
2. both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
3. the respondent is habitually resident in England and Wales;
4. the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
5. the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
6. both parties to the marriage are domiciled in England and Wales; or
7. either of the parties to the marriage is domiciled in England and Wales.

Sole domicile has been added to the primary grounds.

Following the High Court decision in Marinos v Marinos [2007] EWHC 2047, a leading case involving a Greek Husband and English Wife, it’s only necessary to be habitually resident on the day the proceedings were issued, provided there was ordinary residence for the prior six or 12 months, as applicable.

Divorce Jurisdiction in Greece

Generally, the competent court for divorce according to Greek law, is the court of the defendant’s domicile, or the last common residence of the spouses. Greek courts may also have jurisdiction to deal with a divorce if one of the spouses is a Greek national, irrespective of domicile or residence in Greece. Consideration must also be given to:

• the law of the spouses’ last common nationality, provided one of them still holds it;
• the law of the spouses’ last common habitual residence during the marriage; and
• the law with which they have the strongest links.

Conclusion

Jurisdiction criteria for divorce can be complex, and there may be exceptions and nuances depending on the specific circumstances of each case. It is therefore advisable to seek tailored legal advice from a qualified family law solicitor at the outset. In a case involving international elements, it is important first to be advised on jurisdictional criteria of each of the relevant countries, and then assess how each court is likely to approach divorce and financial matters in a particular set of circumstances, with a view to pursuing and securing the most favourable jurisdiction.

At KMJ our solicitors offer advice and representation in cases involving complex international elements and jurisdictional issues, involving countries all over the world. We are specialist family solicitors, and we advise clients who are Greek nationals living in England, or who live in Greece and have a strong connection to England.

Elizabeth Simos is fluent in Greek and has experience dealing with international matters between Greece and England.

Elizabeth Simos is a Consultant Solicitor at Ketley Miller Joels. Should you wish to contact her or one of our other solicitors, please write to info@kmjsolicitors.com or call 0203 709 6895.

Posted on 01/06/23