Where to start proceedings if parties live in different countries — Guide for England and Wales

Introduction: choosing the right forum

When parties live in different countries the first step is to identify the forum best placed to hear the dispute. The choice affects enforceability of orders, speed of resolution and costs. England and Wales apply clear tests but international conventions and practical factors also shape decisions.

Divorce and financial remedy proceedings: residence and domicile tests

For divorce and financial claims the courts look for a strong connection with England and Wales. A spouse can start proceedings here if they are habitually resident or domiciled in England and Wales. Habitual residence focuses on where a person lives day to day and intends to remain. Domicile considers permanent home and long term intentions. If neither party has a clear link other states may provide a more suitable forum.

Child law cases: the child’s habitual residence

Child proceedings usually start where the child is habitually resident. Courts in England and Wales will take a case where the child normally lives here, even if parents live abroad. The child’s welfare remains paramount and the court will apply the Children Act 1989 welfare checklist when making decisions.

Concurrent jurisdiction and forum conveniens

More than one country may have jurisdiction. Where that occurs the English court applies the forum conveniens test to decide whether England and Wales is the most appropriate forum. The court weighs factors such as residence of the child or parties, location of evidence, schooling, welfare considerations and where assets sit. The goal is to choose the forum that best serves justice and the child’s interests.

International conventions: Hague and other treaties

International treaties influence where to start proceedings. The 1980 Hague Convention governs return applications for wrongfully removed children and sets procedures for urgent recovery. Other treaties and bilateral agreements determine recognition and enforcement of financial and parental orders. Parties should check whether the other country is a contracting state before deciding action.

Post Brexit practicalities

Since Brexit the UK no longer uses EU Brussels IIa rules for new cases. Instead England and Wales relies on domestic rules and international conventions for jurisdiction and enforcement. Parties with connections to EU states should factor in potential delays and different enforcement routes when choosing where to start.

Practical steps before issuing proceedings

Gather evidence that shows connections to a chosen forum: proof of habitual residence, school records, employment, property ownership and medical files. Seek early specialist legal advice in each relevant country. Consider mediation or negotiation to avoid costly cross border litigation. Where urgent risk exists, such as international removal of a child, act promptly and seek emergency court orders.

Enforcement and recognition of foreign orders

Think ahead about enforcement. Winning an order in one country does not guarantee automatic enforcement in another. Check whether the target state recognises English orders under convention provisions or domestic law. Where enforcement looks uncertain consider starting parallel proceedings in the state where enforcement will be needed.

Practical advice for parties and advisers

Get specialist international family law advice early. Compile clear documentary evidence of residence, domicile and the child’s habitual residence. Consider the likely enforcement route and the comparative speed and cost of proceedings in each forum. Use Hague Convention routes for abduction risks and prioritise the child’s welfare in cross border decisions.

One secret tip I have is

If you fear that your spouse will be seeking a split of assets other than on a 50-50 basis it may be more favourable for you to issue proceedings outside England and Wales in jurisdictions where equality is not the norm, take legal advice from lawyers in other jurisdictions that may be available

If you wish to ensure as best you can a split of assets on a 50-50 basis and if jurisdiction in England and Wales is available get your divorce petition in as soon as possible

Conclusion: choose forum on law and practicality

Start proceedings where the law gives jurisdiction and where practical factors support enforcement and welfare. Habitual residence, domicile and international conventions guide the legal test, while evidence, timing and enforcement shape the practical choice.

Summary

– Use habitual residence and domicile tests to identify suitable forum

– Start child cases where the child is habitually resident

– Apply forum conveniens when more than one country has jurisdiction

– Check Hague and other treaties for abduction and enforcement routes

– Seek early specialist advice and gather clear residence and welfare evidence

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Peter Johnson on 1st December 2025 and is correct at the time of going to press. With over forty years of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here.

To follow up on any of the above please contact Guy Wilton of our family department. Guy has wide experience of acting for the firm’s clients, their family and their businesses. Guy’s experience as a lawyer started in the Northern and Welsh Circuits, including the Liverpool Courts, where he represented numerous clients after being called to the Bar, before opting to join Alexander JLO in 2017 and qualifying as a solicitor in 2024. He is a highly experienced family lawyer with a particular interest in financial remedy proceedings and child contact disputes.

Guy’s profile on the independent Review Solicitor website can be viewed here.