For the purposes of this Regulation ‘domicile’ is the old common law concept (not the statutory concept found in section 41 of the Civil Jurisdiction and Judgments Act 1982). The House of Lords considered the concept of domicile in Mark and held that, in contrast to habitual residence, domicile had to be given the same meaning in whatever context it arose. An adult could acquire a domicile of choice by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely. Brussels II bis applies the concept of domicile in relation to the United Kingdom and Ireland. Other EU countries use ‘nationality’ in place of domicile, so, for example an action could be raised in Italy if both spouses were Italian nationals, regardless of their domicile.
In some states a joint application for divorce is possible, and in that event there is jurisdiction if either spouse is habitually resident. There are two subsidiary rules. Article 4 confers jurisdiction for a ‘counterclaim’ in respect of matters covered by the Regulation. If there is a divorce proceeding in Scotland in respect of which jurisdiction is based on the Regulation, then a cross-action would probably be covered by Article 4. Article 5 gives jurisdiction for conversion of judicial separation into divorce, in states where such a conversion is possible.
There can be no prorogation of jurisdiction in matters of divorce. A state either has jurisdiction, or it does not have jurisdiction. If the court does not have jurisdiction it is bound to declare of its own motion that this is the case (article 17). A person who is habitually resident in the EU, or is domiciled in the United Kingdom or Ireland, or a national of another member state cannot be sued for divorce, save in accordance with the Regulation (Article 6).
The Regulation is given domestic effect by the Domicile and Matrimonial Proceedings Act 1973, as amended by the European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (SSI 2005/42). The Court of Session has jurisdiction in divorce if:
a) there is jurisdiction under the Regulation, or b)
there is no court of a member state with jurisdiction under the