Bheekhun v Williams
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE CHADWICK,SIR CHRISTOPHER STAUGHTON |
| Judgment Date | 02 December 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1202-17 |
| Docket Number | CCRTF 98/0006/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 1998 |
[1998] EWCA Civ J1202-17
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL COUNTY COURT
(MR ASSISTANT RECORDER RAYNER JAMES QC)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Auld
Lord Justice Chadwick
Sir Christopher Staughton
CCRTF 98/0006/2
MR H MARTEN (Instructed by Messrs Sheridans, London WC1R 4QL) appeared on behalf of the Appellants
MR Q IWI (Instructed by Messrs Alban Gould Baker & Co., London N7 6HG) appeared on behalf of the Respondent
Wednesday 2nd December, 1998
Lord Justice Chadwick will give the first judgment.
This is an appeal against the order made on 24th November 1997 by Mr Rayner James QC, sitting as a Deputy Judge in the Clerkenwell County Court, in proceedings brought by Mrs Sofia Bheekhun under the Inheritance (Provision for Family and Dependants) Act 1975 against the personal representatives of Mohammed Moussa Bheekhun ("the deceased"). By his order the Judge declared that the deceased had died domiciled in England and Wales and directed that a sum of £70,000 be paid to the applicant out of the capital of the deceased's estate. The personal representatives appeal to this Court against the Judge's decision on each of those points.
The deceased was born on 26th January 1931 on the Island of Mauritius. The Island was then a Crown colony. The deceased remained in Mauritius until April 1960, by which time he was some 29 years of age. He came to England on 16th April 1960 with the intention (as the Judge found) to seek work. In February 1961 he was joined by the applicant, with whom he had undergone a ceremony of marriage of Mauritius in 1956. They lived together, in London, as man and wife until 1975. In 1968 the deceased purchased a property in London as the matrimonial home. In 1972 they moved to another property, 103 Fairbridge Road, London N19, also purchased by the deceased.
By June 1975 the relationship between the applicant and the deceased had broken down. She left the property at Fairbridge Road, never to return. Thereafter the applicant had very little contact with the deceased. On 19th April 1977 she commenced proceedings for divorce in London. By way of answer the deceased denied that he was, or ever had been, married to the applicant.
Little progress was made in the divorce proceedings over the next 10 years. Eventually the issue as to the existence of the marriage was resolved by proceedings commenced by the applicant in Mauritius. On 11th August 1986, following a decision of Forget J which was upheld by the Supreme Court of Mauritius on 7th July 1986, the marriage between the applicant and the deceased was registered at the Central Civil Status Office, Port Louis, Mauritius. Although the deceased continued to assert throughout the remainder of his life that he had never been married to the applicant—an assertion maintained by his personal representatives in the answer which they filed in these current proceedings on 29th August 1995—that contention was abandoned by their counsel at the trial. The Judge recorded (at page 4 in his written judgment) that "the fact of the marriage and therefore Mrs Bheekhun's status as Mr Bheekhun's widow is no longer in issue".
On 9th May 1989 the petition for divorce which had been filed by the applicant in 1977 was dismissed by consent on terms that she would file a second petition based on five years' separation. She did so, on 4th September 1989, and a decree nisi was pronounced on that second petition on 13th February 1990. It appears that her application for ancillary relief, made under the original petition on 27th May 1987, was treated as having remained outstanding. At the death of the deceased on 22nd February 1993 that application had not been determined, nor had the decree of divorce been made absolute.
In December 1975, following the breakdown in his relationship with the applicant, the deceased invited his niece, Mrs Rafida Bibi Williams to live at 103 Fairbridge Road and to act, in effect, as his housekeeper. She accepted that invitation. The deceased retained that property until his death in February 1993. He continued to live there with Mrs Williams. she remains there, in the property has been her home ever since 1975.
The deceased made a will in England on 14th October 1987. He appointed Mrs Williams and Mr Gregory Stafford, a solicitor, to be his executors and trustees. He gave all his real and personal property whatsoever and wheresoever to Mrs Williams. Probate of that will was issued out of the Principal Registry of the Family Division to the two named executors on 5th December 1994.
These proceedings were commenced by originating application made in the Clerkenwell County Court on 28th May 1995. By that application the applicant sought an order that such reasonable provision as might be just should be made for her out of the net estate of the deceased.
The jurisdiction to make such an order is conferred by the Inheritance (Provision for Family and Dependants) Act 1975. Sections 1 and 2 of the Act are in these terms, so far as material:
"1(1) Where, after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons-
(a) The wife or husband of the deceased; …
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will … is not such as to make reasonable financial provision for the applicant.
(2) In this Act 'reasonable financial provision'-
(a) In the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased … means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance; …
2(1) Subject to the provisions of this Act, where an application is made for an order under this section, the court may, if it is satisfied that the disposition of the deceased's estate effected by his will … is not such as to make reasonable financial provision for the applicant, make any one or more of the following orders-
(b) An order for the payment to the applicant out of [the net] estate of a lump sum of such amount as may be so specified;"
Domicile
The first issue raised on this appeal is whether the Judge was correct in law in holding on the evidence before him that the deceased died domiciled in England and Wales. It is not in dispute that, absent such domicile, the Court had no jurisdiction to make an order for financial provision under the 1975 Act.
In approaching that issue it is convenient to have in mind the basic rules for the determination of a person's domicile, as set out in Dicey & Morris, The Conflict of Laws (12 Edition, 1993) at pages 124 to 146:
"Rule 9 (1) Every person receives at birth a domicile of origin:
(a) A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth; …
Rule 10 Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.
Rule 11 Any circumstance which is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice in that country.
Rule 12 Without prejudice to the generality of the foregoing Rule, in determining whether a person intends to reside permanently or indefinitely in a country the court may have regard to:
(1) the motive for which he has taken up residence there;
(2) the fact that the residence was not freely chosen;
(3) the fact that the residence was precarious.
Rule 13(1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, but not otherwise. …"
It was common ground before the Judge, as it is before this Court, that the domicile of origin of the deceased was Mauritius; and that he retained that domicile until he came to England in 1960. In those circumstances, the questions before the Judge on the issue of domicile were: (i) whether, on or following his arrival in England, the deceased acquired a domicile of choice in England; and (ii) if so, whether the deceased subsequently lost that domicile of choice.
The Judge directed himself that, as a matter of law, there were two elements in the acquisition of a domicile of choice which he identified as: (a) residence within the country of choice and (b) an intention to reside there permanently or for an unlimited time. He referred to the judgment of Scarman J in In the estate of Fuld (No 3) [1968] P 675 and to the judgments in this Court in Buswell v Inland Revenue Commissioners [1974] 1 WLR 1631 and Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178. It is, I think, sufficient to cite two passages from the judgment in Fuld:
"Domicile is "that legal relationship between a person … and a territory subject to a distinctive legal system which invokes the system as [his] personal law …": see Henderson v Henderson [1967] P 77, 79. It is a combination of residence and intention. It takes two forms—domicile of origin and domicile of choice. A classic description of the concept is to be found in Lord Westbury's speech in Udny v Udny (1869) LR 1 Sc & Div 441 (HL). Two features of his description are of...
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The Requisite Intention for the Acquisition of Domicile of Choice: Permanent or Indefinite – A Comparative Perspective
...and objective. An instance of a subjective enquiry was borne by the decision of the court in Bheekhun v Williams,6767Bheekhun v Williams [1999] 2 FLR 229 at 239. where it was held that ‘the relevant inquiry is what was in his mind; not what a person who was better informed would have apprec......