How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34276
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
13262538
Type Your Law Question Here...
Clare is online now

Dear Solicitor, I filed a divorce petition after more than

Resolved Question:

Dear Solicitor,
I filed a divorce petition after more than 2 years separation, but my ex disputed the jurisdiction and the judge called a hearing in July.
Briefly:
. we both are Italians
. got married in Italy in February 1998
. one daughter (almost 12 years old -17.07.2003)
. live separately since January 2013
. official separation issued in Switzerland on June 2013 (she was living there while I was living in Germany; my flat in Geneva was assigned to my ex)
. me now living in UK since June 2014, my ex living in UK since September 2014 when our daughter started to attend school here. The rent of the flat in Geneva has been terminated in October 2014.
. divorce petition filed in mid February 2015 at Family Court of Slough
. hearing in court called on 1 July as respondent (my ex) has disputed jurisdiction (she stated is habitually resident in Switzerland but temporarily domiciled here)
Current situation:
. me living in Bucks
. full term work contract
. my ex lived in a flat in Berkshire from September until end of April
. currently she got a room with bathroom in a private house (with shared kitchen)
. our daughter is still attending school here in UK (mother drops her off to school)
. she has a bank account where I pay for child maintenance (and paid alimony to her until Dec 2014)
. she worked, even if temporarily, and is currently searching for a new job
. she has a car
I have some evidences:
. a few mail of the past months where she states she leaves here (and she specified her previous address)
. bank transfer to her bank account
. school report of our daughter
. proof of evidence that the flat in Geneva has been left.
According to a couple of opinions from expert solicitors in International Family Law, she established the 'centre of her interests or of her social life' here and therefore the jurisdiction is in UK.
Swiss judge at the time of separation had also said that if both my ex and I were not living in Switzerland, that Swiss Court would have been not competent anymore.
Questions:
1. Can you please confirm to me if the evidence above described (which I intend to provide to the judge) and the current situation above described is enough to consider my ex as habitual resident here?
2. She stated (in the acknowledgement of service – respondent spouse) that she does not intend to defend divorce if jurisdiction is confirmed in UK. If undefended, can she challenge divorce after decree nisi?
Thanks a lot for your advice.
Best regards,
Daniele Pennestri'
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
For clarity - do you consider yourself habitually resident here in the UK?
Clare
Customer: replied 2 years ago.

Yes

Expert:  Clare replied 2 years ago.
Hi
In that case her position is not relevant.
You have been habitually resident in the Uk for more than 12 months and that fulfils the requirement of Jurisdiction - see here
http://www.alternativefamilylaw.co.uk/en/international/brussels-II.htm
Once Decree Nisi has been granted then the divorce can no longer be defended
I hope that this is of assistance - please ask if you need further details
Clare
Clare and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,

Thanks a lot for your reply.

I understand what you say with regards ***** *****

However, as the divorce petition was submitted in February, can she also be considered as habitual resident in UK (having settled here for family reasons) at the time when the divorce petition was submitted? As she disputed the jurisdiction, I suppose the judge will verify her habitual residence instead than mine.

If only my position of habitual resident is taken into consideration, because her position is not relevant, have I to submit a new divorce petition with only me as habitual resident?

If the divorce can no longer be defended, this means that after 6 weeks after decree nisi I can apply for dissolution without problems?

Thanks.

Daniele

Expert:  Clare replied 2 years ago.
Hi
My apologies - I note that you had not been in the Uk for more than 12 months at the time you issued the Petition - and neither had your ex
On that basis if she does not agree that she is Habitually Resident then I am afraid it is far from certain that the Court did have Jurisdiction and your petition will fail
I would suggest that it would be cheaper to seek permission to withdraw the current petition and issue a new one based since you are now eligible to do so
Clare
Customer: replied 2 years ago.

Dear Claire,

I am a bit confused.

When I filed the divorce petition, I had in mind the UK definition of 'habitual residence' and 'domicile'. I stated that both Petitioner and Respondent are habitually resident in UK; she replied to Court stating that she is habitually resident in Switzerland (where separation occurred 2 years ago) but temporarily domiciled in UK for family reasons. But she was not living physically in Switzerland at the time the divorce petition was submitted because she was living here (in practice she does not want to divorce and only wants to lose time).

My questions (the last one) are:

1 - Based on above and previous mail, is the Court which decides if she is habitual resident here according to the UK Law, or this decision is based on her agreement or disagreement?

2 - If I decide to file the divorce petition as you suggest she will always dispute the jurisdiction. Can she do this and lose again time?

Thanks again.

Daniele

Expert:  Clare replied 2 years ago.
Hi
The definition of Habitual residence is in fact vague and depends to a degree on what the person involved feels.
However neither of you had been in the country for a year at the time you issued which is why there is a real problem.
It is for the Court to decide but faced with her clear feelings it is unlikely that they will go against her at this stage.
However since you have now been in the Uk a year and consider yourself habitually resident then the Court does now have Jurisdiction no matter what your ex's residential status is so if you reissue the divorce can go ahead
Clare