The CJEU casts doubt on England's new post-Brexit divorce jurisdiction law

Summary

A recent decision of the CJEU has addressed the definition of habitual residence for divorce jurisdiction under Art 3 of BIIA.  It confirms the interpretation hitherto held in England that a party can have only one habitual residence at one time.  But it has also given a strong indication that habitual residence has to be continuous for the requisite period before the date of issuing of proceedings and not just on the date of issue.  This has been a controversy in English case law over many years with the majority of professional opinion allegedly being that habitual residence was only necessary on the date of issue and merely residence for the requisite preceding period.  The Ministry of Justice relied on this interpretation in drafting England’s new post Brexit divorce jurisdictional law on the basis of following EU law.  Now seemingly that is not so.  What will now be the position in England dealing with cases involving EU Member States?  In any event what is the position with transitional cases?  The authors have written a detailed and expanded article on this forthcoming in the July issue...

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