In most cases the answer will be England – as long as if you lived here before separation and had meaningful links to this country.
If your husband, does not agree, however, he may counter an application for divorce in the courts of England and Wales by arguing that it should proceed in the United States instead, or even in a third country, depending on your family circumstances.
If he does respond in that way, the English family courts will apply a set of legal principles called forum conveniens – Latin for ‘appropriate forum’.
What is the forum conveniens?
Forum conveniens is the analysis of the couple’s individual circumstances in order to determine whether the courts of England and Wales are really the most appropriate venue for a particular case. In divorce disputes, factors that might be considered include:
- The nationality of each spouse
- The history of their relationship
- How each has behaved since the separation
But the most important factor is where the couple lived during their marriage. This issue is referred to in family law as habitual residence.
What is habitual residence?
Habitual residence is an important legal concept in family law, used when a dispute or divorce involves two or more countries or legal jurisdictions. The term refers to the country in which a person usually lives or the one to which they have the strongest personal or legal connections. It is a flexible concept, without a very precise definition, so it can be applied to a range of different scenarios and family circumstances.
An individual’s habitual residence need not reflect their country of origin, and it does not automatically change if they relocate to another country. Depending on the specifics of the situation, the person’s habitual residence may remain the country in which they previously lived, at least for a period of time.
In general, if an individual applies for divorce in England or Wales and their estranged spouses argues that this country is not the appropriate venue, the courts will allow the proceedings to continue if the first spouse can demonstrate that they have a meaningful connection to England – in other words, that this country is their habitual residence.
But if they fail to do so, or the judge simply finds the other spouse more persuasive, the divorce proceedings will be ‘stayed’ or paused, then transferred to the other jurisdiction for resumption there.