The criteria to have your case heard
In divorce, civil partnership dissolution, or separation cases, you need to show that one of the following statements is true:
- You and your spouse or civil partner are both habitually resident in Northern Ireland.
- Your spouse or civil partner is habitually resident in Northern Ireland.
- You and your spouse or civil partner are both domiciled in Northern Ireland.
- Either you or your spouse or civil partner is domiciled in Northern Ireland (Note: for same-sex marriages and civil partnerships, this option is only available if 'no other court' has jurisdiction under any of the other grounds in this list. The situation is uncertain because it's not yet clear how 'no other court' should be interpreted – if it's interpreted as 'no other court in Northern Ireland', then there's actually no practical difference for same-sex marriages and civil partnerships.)
- You and your spouse or civil partner were last habitually resident in Northern Ireland and either you or your spouse or civil partner still lives there.
- You are habitually resident in Northern Ireland and you have lived there for at least a year immediately before issuing the petition.
- You are domiciled and habitually resident in Northern Ireland and you have lived there for at least 6 months immediately before issuing the petition.
If none of the above statements is true of your situation, the courts of Northern Ireland may still, in some circumstances, be able to hear your application. For example, if you're in a same-sex marriage or civil partnership that was formed in Northern Ireland and no court is recognised as having jurisdiction, the courts in Northern Ireland might assume jurisdiction. They'd do this if it was in the interest of justice to do so, but this 'jurisdiction of last resort' is complicated and you would need to seek legal advice.
Domicile & Habitual Residence
You are domiciled in the country in which you have, or are deemed by law to have, your permanent home. In some cases, you may have no permanent home, but the law requires you to have a domicile. Similarly, you may have more than one home, but you can have only one domicile.
Domicile of origin
The domicile of origin is gained at birth. It will be the same as the father's if the child is born to married parents or the mother's if the child is born to unmarried parents, until proven otherwise. It is not determined by the place of birth.
This domicile cannot be taken away, but it can be suspended if a domicile of choice or a domicile of dependence is acquired.
Domicile of dependence
Children under 16 and people suffering from mental incapacity can acquire a domicile of dependence based on the domicile of the person on whom they are legally dependent.
Domicile of choice
Any person, not legally dependent on another, may at any time change their existing domicile and get a new domicile in another country if they intend to:
- Make their sole or principal permanent home in that country of residence; and
- Continue to live there indefinitely.
It doesn't matter how long they choose to live there, as long as they have the required intention.
Habitual residence means that a person lives somewhere regularly and is only away temporarily. To establish habitual residence a person must be physically present in a particular place voluntarily and with the intention to remain there for a significant amount of time.
The test of habitual residence is where a person has substantial links with a country that they live in.