Consistorial Jurisdiction (L12) Flashcards
Which piece of legislation governs consistorial proceedings in Scotland with effect from 1st Jan 2021?
The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (SSI 2019/104) (‘2019 Exit Regulations’).
This just AMENDED the DMPA 1973.
What is the DMPA 1973 rule for actions for divorce and separation?
Court of Session shall have jurisdiction if either party is:
(a) domiciled in Scotland on the date when the action is begun, or
(b) was habitually resident in Scotland throughout the period of one year ending with that date.
What are the other relevant DMPA 1973 sections relating to consistorial proceedings?
s7(3A) – actions for declarator of nullity of marriage.
s8(2) and (2A) – jurisdiction of the sheriff court.
s8A – re same sex marriage, introducing Sch 1B: jurisdiction in relation to same sex marriages (Scotland).
Which piece of legislation governs consistorial proceedings in England?
The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/519).
What is meant by ‘domicile’ in consistorial proceedings?
CLASSIC domicile.
What are (and were) the applicable rules to EU consistorial proceedings?
From 1/8/22 – Brussels II ter, art 3.
Up to 31/7/22 – Brussels II bis, art 3.
What is set out in Brussels II ter/bis, articles 3 (the rule for consistorial jurisdiction)?
Jurisdiction in matters relating to divorce, legal separation, or marriage annulment lies with the court of the Member State in whose territory:
(a) SIX possible bases of jurisdiction … ALL based upon habitual residence; or
(b) in which both spouses are domiciled (re UK domiciliaries) or nationals.
What does Brussels II ter, article 3 say?
Jurisdiction in matters relating to divorce, legal separation, or marriage annulment lies with the court of the Member State:
(a) In whose territory
1. Both spouses are habitually resident;
2. Spouses were last habitually resident insofar as one of them still resides there;
3. Respondent is habitually resident.
4. In joint applications: either spouse is habitually resident.
Applicant is habitually resident if s/he resided there for at least 1 year immediately prior to the application.
Applicant is habitually resident if s/he resided there for at least 6 months immediately prior to the application AND is national of a Member State [‘domiciled’ in UK/Ireland].
(b) Of which both spouses are nationals [ex-Brussels II bis - UK & Ireland, domiciliaries … see now Brussels II ter, art 2(3)].
What does Munby J in Marinos v Marinos [2007] 2 FLR 1018 tell us about the meaning of habitual residence in matrimonial jurisdiction?
UK was an EU Member State. Habitual residence doesn’t mean the same thing in all contexts.
The purpose of HR for these purposes of international family law had an autonomous definition. Adopt the Brussels definition.
Family lived between England and Greece.
Petition for divorce in England the day after she moved to England.
Her education and work was in England, children were in Greece. Said she was habitually resident in England.
But very divided. Two habitual residences was possible. But this would be inconsistent with Borras, must have a centre of their life.
A person can only have one habitual residence at a given point in time.
How does the Borras report define habitual residence?
“The place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence.”
Note: permanent/habitual don’t really mean the same thing…
How does L-K v K [2006] EWHC 153 help to define habitual residence in matrimonial jurisdiction?
French nationals, married in Singapore, came to England for work.
Wife wants to raise divorce proceedings in England.
Relying on habitual residence in England.
Court said that since they came to England for the husband’s work, there was some settled purpose, intention to settle. At least for the duration of the employment, which was open ended.
Looking for a genuine connection between the parties and the English court.
“Centre of interests” approach in Borras.
No set period of time to satisfy.
How does Nicolaisen v Nicolaisen [2022] EWFC 70 approach the determination of habitual residence for matrimonial jurisdiction?
Adopts the language of the Borras report.
- There is no dispute that, for these purposes, you can only have one habitual residence. Habitual residence is defined as the place where the person has established, on a fixed basis, his or her permanent or habitual centre of interests. All relevant facts will be taken into account in determining that. There is no specific timeframe for having established habitual residence. In some cases, it can be done very quickly. In others, it will take longer. If there is a planned, purposeful and permanent relocation to another country, habitual residence can be acquired contemporaneously (or virtually contemporaneously) with the loss of a previous habitual residence.
- The test is qualitative not quantative. In other words, it is not simply a head-count of days and nights, although time spent in a particular location will be a relevant factor in most cases.
How does Nicolaisen v Nicolaisen [2022] EWFC 70 approach whether a person may be without a habitual residence?
- There has been debate as to whether a person could ever be without a habitual residence. It seems that you can be for a brief period but only whilst you establish your new centre of interests.
- You can be without a habitual residence…?
- Judges would be reluctant to declare someone without a habitual residence.
What does Mark v Mark [2005] Fam 267 tell us about illegality in residence?
This does not matter. Unlawful residence can still be habitual residence.
What are the applicable rules in Scotland to solve conflicting consistorial jurisdiction?
DMPA 1973, Sch 3.8 – mandatory sists (concurrent UK actions).
DMPA 1973, Sch 3.9 – discretionary sists/stays (concurrent Scottish and overseas actions).
