Divorce, Nullity and Judicial Separation

1. Divorce, Nullity and Judicial Separation • Jurisdiction • Choice of Law • Recognition

2. Jurisdiction • Bases of jurisdiction • 1. Section5, Part II , The Domicile and Matrimonial Proceedings Act 1973 • 2. Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (known colloquially as "Brussels II"). (1 March 2001) • 3. Council Regulation (EC) No 220112003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility ("Brussels II bis") (1 March 2005) • 4. Proposal for a Council Regulation amending Regulation (EC) No 220112003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (known colloquially as "Rome III) • Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 provides that the High Court or a divorce county court shall have jurisdiction to entertain proceedings if, and only if: • (a) the court has jurisdiction under Brussels II bis; or • (b) no court of a Contracting State38 has jurisdiction under Brussels II bis, and either of the parties to the marriage is domiciled in England on the date when the proceedings are begun. In other words, pre-eminent jurisdiction lies with the courts of a country which has jurisdiction in terms of Brussels II bis.

3. Article 3 of Brussels II bis states the principles of general jurisdiction. • Jurisdiction shall lie with the courts of the Member State: • (a) in whose territory: • — the spouses are habitually resident, or • — the spouses were last habitually resident, insofar as oneof them still resides there, or • — the respondent is habitually resident, or • — in the event of a joint application, either of the spouses is habitually resident, or • — the applicant is habitually resident if s/he resided there for at least a year immediately before the application was made, or • — the applicant is habitually resident if s/he resided there for at least six months' immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has hislher domicile there; • (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the domicile of both spouses.

4. The grounds of jurisdiction in Article 3 are set out as alternatives, and not in any order of precedence. It is apparent that there is some overlap in the provisions of Article 3; there is no need for a basis of jurisdiction on the ground of the spouses' common residence (indent 1), if jurisdiction can be founded upon the respondent's residence alone (indent 3).

5. Habitual residence • It can be seen that the principal connecting factor is habitual residence. This factor is nowhere defined in the instrument, and it is not easy to define. It has been held that the term “habitual residence” has an autonomous meaning for the purposes of the Brussels II bis Regulation. • "Habitual residence" is a key concept in Brussels II bis.  It is not defined.  Habitual residence is a question of fact.  It has been said to mean residence which is being enjoyed for the time being and with the settled intention that it should continue for some.  • At one time it was thought that in order to be habitual, residence should be voluntary, but the Inner House has indicated that residence need not be voluntary to he habitual (Cameron v Cameron 1996 SCLR 25).  • It was also thought that the residence should be lawful, but the House of Lords has decided habitual residence may arise even when a person is resident unlawfully (Mark v Mark [2005] 3 WLR 111). 

6. Indeed, in the context of divorce jurisdiction, a respondent has been heldto be habitually resident in England even though she spent one-third of the relevant year either on holiday in Spain or visiting her children in the USA and Canada. • Ikimi v Ikimt’ • The Court of Appeal in this case had to consider whether a Nigerian wife who filed a petition for dissolution of marriage in England on the basis of residence had two such residences. The family had two matrimonial homes, of status, in Nigeria and in England, and the wife had spent 161 days of the year in England. The submission that it was not possible to be habitually resident in two places simultaneously was firmly rejected by the Court of Appeal, but the Court took the view that the bodily presence required to form a basis for habitual residence had to be more than merely token in duration, probably amounting to residence for "an appreciable part of the relevant year". • Subsequently, in Armstrong v Armstrong, Dame Elizaberth BUTLER-SLOSS concluded that the correct approach to the degree of continuity required to establish habitual residence in a country “cannot just be a counting of the days spent in the country. There has to be an element of quality of residence.“ • In Marinos vMarinosit fell to be decided whether, for the purposes of Brussels II bis, a person can be habitually resident in two different countries at the same time. Munby J considered that while it was clear that, for the purposes of English domestic law, one could be habitually resident contemporaneously in two different countries, "the same is not necessarily true of the law laid down by the ECJ nor, specifically, for the purposes of the Regulation"

7. Marinos v. Marinos, [2007] EWHC 2047 (Fam) • On 3rd September 2007 Mr Justice Munby handed down Judgment in Marinos v. Marinos– a case which concerned the issue of whether a wife had grounds under Brussels II (Revised) to petition for divorce in England. • The Judgment has generated significant interest – being one of the first cases in which 'habitual residence' within Brussels II (Revised) has been defined either in this jurisdiction or, as far as is known, anywhere else in the EU. It is therefore likely to directly affect not just this country but all EU family law jurisdictions. • The factsThe case concerned a husband ('H') who was Greek and a wife ('W') who was English. The parties met and married in England in 1992 and had two children born in 1996 and 2000 respectively. In late 2002, the parties moved to Greece, either for a trial period or as a temporary relocation. Both children were enrolled in schools in Greece; H took up a position with a medical centre in Athens and W returned to part-time work as cabin crew with British Airways in July 2003 on a 33% contract (i.e. three weeks working in a nine week period). She would travel from Athens to London and thereafter from London on her flights as appropriate. On 13th September 2006, W increased her contract to 50% (i.e. four weeks working in an eight week period) for a fixed six-month term.

8. W had completed a part-time law degree (LLB) prior to the parties' move to Greece and deferred the start of her part-time LPC. In 2004, W was informed that she could not defer the course for another year so she completed the LPC part-time in Birmingham from September 2004 – June 2006. She had a room kept at her parents' house which she used whilst studying and when she visited her parents either when working or with the children on holiday. • The parties separated on 31st January 2007 when W returned to England with the two children who started new schools on 5th February 2007. W and the children lived in a hotel until 6th March 2007 when they moved back into the parties' London property once the tenants had vacated. • W issued her divorce petition on 1st February 2007 – i.e. the day after she returned to England. H disputed that jurisdiction existed and sought a stay. H also issued his own divorce proceedings in Greece. Because W had issued first in time, her petition would take priority if there was jurisdiction. • Basis of jurisdictionThe jurisdiction of the High Court and county courts to entertain proceedings for divorce or judicial separation is set out at s5(2) of the Domicile and Matrimonial Proceedings Act 1973. The court shall have jurisdiction if (and only if) the Court has jurisdiction under Brussels II (Revised) or no Contracting State has jurisdiction under Brussels II (Revised) and either of the parties is domiciled in England and Wales on the date when proceedings are begun.

9. W issued her divorce petition relying on the sixth of the seven potential grounds for jurisdiction set out at Article 3(1) of Brussels II (Revised) – namely that this was the member state in whose territory "the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there." • H challenged the jurisdiction saying that both he and W were habitually resident in Greece; that W was domiciled in this country on the day that she issued her petition was not in dispute. • The JudgmentMunby J held that W was entitled to petition for divorce where and when she did. There were essentially four aspects to his Judgment: • 1) there is an autonomous EU-wide meaning of 'habitual residence' that applies to Brussels II (Revised);2) a person can have only one 'habitual residence' at any one time for the purposes of the autonomous definition;3) the word 'resided' in the ground in question means 'resided' and not 'habitually resided'; and4) in appropriate circumstances a person can acquire a new 'habitual residence' under the autonomous definition very quickly.

10. Exclusive nature of jurisdiction under Articles 3, 4 and 5 and residual jurisdiction • By virtue of Article 6 of Brussels II Ms, a spouse who (a) is habitually resident in a Member State; or (b) is a national of a Member State, or, in the case of the United Kingdom, has "domicile" in that state, may be sued in another Member State only in accordance with Article 3, 4 or 5.

11. Sundelind Lopez v Lopez Lizazo • The case concerned the commencement of divorce proceedings in the District Court of Stockholm by the female petitioner, a Swedish national, against her respondent husband, a Cuban national. The couple had lived together in France. At the date of commencement of proceedings, the petitioner continued to reside in France, whereas her husband, by then, was resident in Cuba. • The Swedish court dismissed the petition on the ground that, under Article 3( 1) of Brussels II his, only the French courts had jurisdiction and that, accordingly, Article 7 of the Regulation precluded Swedish rules on jurisdiction from applying. The Court of Appeal dismissed the appeal brought by the petitioner against that judgment. In a further appeal to the Swedish Supreme Court, the petitioner submitted that Article 6 of Brussels II bis implies that the courts of Member States do not have exclusive jurisdiction where the respondent neither has his habitual residence in, nor is a national of, a Member State. In February 2007, the Swedish Supreme Court referred the following questionto the ECJ for a preliminary ruling on the matter, namely: • The respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State. May the case be heard by a court in a Member State which does not have jurisdiction under Article 3 [of Brussels II bis], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3? • In November 2007, the ECJ delivered its judgment, ruling as follows:

12. Articles 6 and 7 of the Regulation are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of the Regulation. • The Court held that, according to Article 7(1), it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation that jurisdiction is to be governed, in each Member State, by the laws of that state. Moreover, according to Article 17 of the Regulation, where a court of one Member State is seised of a case over which it has no jurisdiction under the Regulation, and a court of another Member State has jurisdiction pursuant to the Regulation, the former is to declare of its own motion that it has no jurisdiction. Finally, the EC] made clear that Article 6 does not lay down a general rule that the jurisdiction of the courts of a Member State to hear questions relating to a divorce in respect of a respondent who does not have his habitual residence in a Member State and is not a national of a Member State is to be determined, in all cases, national law. • The consequence, in Sundelind Lopez v Lopez Lizazo, was that since the French courts had jurisdiction to hear the divorce petition pursuant to Article 3(l)(a), the Swedish courts could not base their jurisdiction to hear that petition upon rules of their national law, pursuant to Article 7 (1), but were required, in accordance with Article 17, to declare of their own motion that they had no jurisdiction, in favour of the French courts.

13. Summary: Jurisdiction: Sundelind Lopez v Lopez Lizazo (ECJ; 29 November 2007) • Articles 6 and 7 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of that regulation. • If under Brussels II (Revised), Art 3, a member state had jurisdiction in a matrimonial matter concerning a respondent who was neither an EC national nor resident, another member state could not found jurisdiction on its own national law. Only if no court had jurisdiction under Brussels II (Revised) was jurisdiction to be governed by the laws of the member states. • That interpretation is not affected by Article 6 of Regulation No 2201/2003, since the application of Articles 7(1) and 17 of that regulation depends not upon the position of the respondent, but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the regulation, the objective of which is to lay down uniform conflict of law rules for divorce in order to ensure a free movement of persons which is as wide as possible. Consequently, Regulation No 2201/2003 applies also to nationals of non‑Member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in that regulation, grounds which are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction.

14. Choice of Law • Divorce and Judicial Separation • Judicial Separation • Judicial separation is more than just husband and wife living apart. People in the UK often talk about legal separation without necessarily being too precise about what exactly they mean. Usually it just means that they want to live apart from their spouse but that they want some formality to the separation so that they can each pursue their own lives. In fact, there is a remedy available from the family courts called a decree of judicial separation. This is not a divorce and the parties remain married but, in effect, there is marital separation all the normal marital obligations come to an end. • A decree of judicial separation can be granted for any of the grounds which would justify a divorce - unreasonable behaviour, adultery etc - but it is not necessary to prove that the marriage has irretrievably broken down. Also, there are not two decrees as there are in divorce – decree nisi and decree absolute- but simply one decree pronouncing the judicial separation once the court is satisfied that the requirements are met. • A decree of judicial separation has three main effects:- • (1) The spouses are no longer obliged to live together; • (2) The court can exercise all the powers which it has to divide the matrimonial property etc just as it can in the case of a divorce; and • (3) The decree operates just like a divorce in terms of its effect on any will - the spouse no longer takes any benefit unless a new will is made specifically stating that is to be the case.

15. The Decree Absolute • The Decree Absolute is the final certificate that legally dissolves the marriage. There is often a considerable delay between Decree Nisi and Decree Absolute while financial and childcare arrangements are negotiated.To finalise your Divorce, Judicial Separation or Nullity you will need to apply for a "Decree". In divorce proceedings this is done in 2 stages. • You will first need to apply for what is called the "Decree Nisi". • After your partner has returned his or her "Acknowledgment of Service Form" to the court to say he or she does not oppose the divorce you may then apply for your Decree Nisi. You do this by completing an "Affidavit" and a "Request for Directions for Trial Form". You can obtain these two documents from your local County Court. • The court will send you and your partner a copy of your Decree Nisi. You must then wait 6 weeks and 1 day from the date of the Decree Nisi. You can then apply to make the decree "Absolute" (Permanent). • This is done by sending a "Notice of Application for Decree Nisi to be made Absolute Form" to the court, again you can collect this Form from the County Court. • We provide government approved and official Decree Absolutes, we are here to help. UK GRO Certificates team will conduct a search to obtain an official Decree Absolute certificate to confirm a divorce has taken place or produce a "No Result" certificate to confirm no divorce has taken place in England and Wales. • You can order a replacement Absolute online through UK GRO Certificates. We provide government issued replacement UK certificates in England and Wales, Scotland, Northern Ireland, Republic of Ireland, and overseas registrations of UK citizens.

16. Choice of Law of Divorce • At common law, the sole basis of the jurisdiction of the English courts in divorce was domicile and no choice of law problem arose. English law was applied and this could be justified either as the application of the law of the domicile to issues affecting status or as the application of the law of the forum on the basis that dissolution of a marriage is a matter which "touches fundamental English conceptions of morality, religion and public policy", and one which is governed exclusively by rules and conditions by the English legislature. • The need for a choice of law rule arises when the court possesses jurisdiction on some basis other than domicile, as may be illustrated by Zanetli v Zanelli: • An Italian national, domiciled in England, married an Englishwoman in in 1948. Later he was deported from England and thereupon reverted to his Italian domicile. The Matrimonial Causes Act 1937, which was then in force, had given the English court jurisdiction in divorce (and also judicial separation) in such a case, but it did not impose a rule for the choice of law. • The court, applying English domestic law but without any consideration of the choice of law issue, granted the wife a decree of divorce, despite the rule of the Italian law of her domicile at that time that divorce was not permissible.

17. E.U. Adopts Divorce Choice of Law Regulation (Monday, December 27, 2010) • On December 20, 2010 the European Union Council adopted the Rome III Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. • Article 5 allows spouses to agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: • (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded, or(b) the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded, or(c) the law of the State of nationality of either spouse at the time the agreement is concluded, or (d) the law of the forum.

18. Article 8 provides that if the spouses do not agree on a choice the law that will govern their divorce and separation shall be the law of the State:(a) where the spouses are habitually resident at the time the court is seized; or, failing that,(b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that,(c) of which both spouses are nationals at the time the court is seized; or, failing that,(d) where the court is seized.The rules are intended to provide greater certainty, predictability and flexibility, and to prevent the EU’s notorious "rush to court" that the Brussels II Regulation has encouraged.The Regulation will apply to 14 states, these being Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU Member States may join at any time. Notable “refusenik” countries are Britain, Ireland and the Scandinavian countries.

19. New European Choice of Law Divorce Rules • The new rules will allow international couples to choose the applicable law if they were to separate, as long as it is the law of a country to which they have a close connection (such as long-term residence or nationality). For example, it would allow a Swedish-Finnish couple living in Spain to agree that Swedish or Finnish law applies if they were to divorce.If the spouses themselves cannot agree on the applicable law, it will be determined on the basis of the following connecting factors:• Divorce and legal separation are primarily subject to the law of the country where the spouses have their common habitual residence;• Failing that, where they had their last recent common habitual residence if one of them still resides there;• Failing that, to the law of the spouses’ common nationality; and, • Failing that, to the law of the court before which the matter is brought. Under this formula, the law of the country where the divorce or legal separation was requested will apply in the vast majority of cases. The idea is that couples would have more legal certainty, predictability and flexibility and that this would help to protect spouses and their children from complicated, drawn-out and painful procedures. The proposals are also designed to protect weaker spouses from being put at an unfair disadvantage in divorce proceedings. • Several EU countries have refused to participate in the new scheme.

20. the standard choice of law rules would be either: • · the lex patriae (the law of nationality) or habitual residence applied in the civil law courts (see Article 1 Hague Convention on Recognition of Divorces and Legal Separations 1970); or • · the lex domicile (the law of the domicile) applied in the common law courts. • In Kaur v. Bharmota, both marriages were celebrated in India, but the first marriage was dissolved before the celebration of the second marriage. The dissolution was effected by a divorce agreement entered into in India and bearing the husband's signature and the wife's fingerprints. Both parties were members of the Sikh religion, and the agreement, which conformed to Sikh custom, had the effect of divorce under Indian law. The court held that the validity of the divorce (and thus of the second marriage) was governed by Indian law, and since the divorce was valid under that law, the second marriage was valid as well, thus recognizing the second wife as the decedent's surviving spouse for inheritance purposes.

21. 我国有关涉外离婚的法律规定 • 《涉外民事关系法律适用法》 • 第二十六条　协议离婚，当事人可以协议选择适用一方当事人经常居所地法律或者国籍国法律。当事人没有选择的，适用共同经常居所地法律；没有共同经常居所地的，适用共同国籍国法律；没有共同国籍的，适用办理离婚手续机构所在地法律。 • 第二十七条　诉讼离婚，适用法院地法律。 • In most Western countries, a divorce does not declare a marriage null and void, as in an annulment, but it does cancel the married status of the parties. Where monogamy is law, this allows each former partner to marry another. Where poligamy is legal, divorce allows the woman to marry another. Divorce laws vary considerably around the world. Divorce is not permitted in some countries, such as in Malta and in the Philippines, though an annulment is permitted. But in Malta, as of 2010, a discussion was started to make divorce legal and a referendum is supposed to be taking place sometime in 2011. From 1971 to 1996, four European countries legalised divorce: Spain, Italy, Portugal and the Republic of Ireland.

22. 案例. 涉外离婚案件的管辖权 • 中国公民王华实与中国公民付春花1987年在北京结婚，1989年生有一子。1990年，王华实自费到美国留学，1996年取得博士学位，在加拿大安大略省一家公司找到工作。1997年8月，王华实以夫妻长期分居为由在安大略省多伦多法院提请离婚诉讼。王华实在离婚请求书中隐瞒了他与付春花生有一子的事实。离婚请求书由王华实的律师邮寄送达付春花后，付春花气愤万分。王华实赴美6年多，付春花除工作外，还要抚养孩子，伺侯老人。付春花还考虑到丈夫在外求学不易，节衣缩食，常给丈夫寄些衣物。没想到，王华实学有所成，就一脚蹬了她母子俩，而且还向法院隐瞒他有儿子这一事实，不想承担抚养儿子的义务。付春花经过一番咨询后，向北京市××区人民法院提起离婚诉讼。 • 北京市××区人民法院公开审理了此案。王华实未到庭，法院作出缺席判决。判决付春花与王华实离婚，王华实承担儿子抚养费每月350元。 • 加拿大安大略省多伦多法院也审理了王华实提起的离婚案，付春花未到庭，多伦多法院判决王华实与付春花离婚。 • 提问： • 1、离婚案件一方当事人在外国法院提出离婚诉讼，外国法院已经受理，在这种情况下，位于我国境内的一方当事人向中国法院提起诉讼，中国法院是否应受理，为什么？ • 2、我国法院作出判决后，我国能否承认加拿大法院作出的判决？

23. Nullity • In conflict of laws, the issue of nullity (known as annulment in the United States) in family law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. As in English law, some classify marriages as either void or voidable; others have no concept of a voidable marriage; still others have a third category of “non-existent” marriage (e.g., Nichtehe in Germany). The decree of nullity may therefore be no more than a declaration that no marriage had ever come into being, i.e. it is void ab initio, or it may be equivalent to a decree of divorce, i.e., the marriage requires a decree to dissolve it.

24. Choice of law of Nullity • There is also wide disagreement internationally as to which choice of law rules should apply. • In some states, the lex loci celebrationisdeals with most issues of validity; in others, there is agreement that the lex loci celebrationisshould determine whether a marriage is formally valid, but disagreement as to which connecting factor: nationality (the lex patriae), domicile (the lex domicile) or habitual residence, should define essential validity. • The Hague Convention on Celebration and Recognition of the Validity of Marriages (1978) makes only limited progress towards a harmonized position. • In the EU, the "Brussels II" Regulation 1347/2000 of 29 May 2000 (effective from 1 March 2001) sets out the rules on jurisdiction, and the recognition and enforcement of nullity judgments and of parental responsibility orders for the children of both spouses (the "new Brussels II" Regulation 2201/2003 applies to cases arising on or after 1 March 2005, but the substance of the rules is unchanged).