Charoo Sekhri (Petitioner) v Aloke Ray
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 23 July 2013 |
| Neutral Citation | [2013] EWHC 2290 (Fam) |
| Court | Family Division |
| Docket Number | No. FD12D04003 |
| Date | 23 July 2013 |
[2013] EWHC 2290 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr Justice Holman
No. FD12D04003
MR P. CHAMBERLAYNE QC (instructed by Sears Tooth) appeared on behalf of the Petitioner.
MR T. SCOTT QC (instructed by International Family Law Group LLP) appeared on behalf of the Respondent.
Preface
This case is a story of human tragedy. The husband and wife met through an online dating agency when each was in their mid-thirties. They were already mature people. They were, and are, each highly intelligent, very well educated, energetic, successful and ambitious professional people. The husband was, as he still is, a successful international lawyer and litigator and a partner in a world-class American law firm. The wife was, and is, a paediatric anaesthetist, already a Fellow of the Royal College of Anaesthetists, working at Great Ormond Street Hospital and within reach of achieving her goal of becoming a consultant at a leading London hospital. What each felt they lacked in their lives was a long-term partner or spouse.
They first met through the dating agency in December 2008. It is clear that a closeness rapidly developed, for within about three months, and by April 2009, they were clearly contemplating that they might move and live together in Singapore. They became engaged in June and married in December 2009. Their beloved son, Ishaan was born in December 2010. By August 2011 there were intense and aggressive arguments between them, with undoubtedly some violence given and received by each; and, frankly, well under two years after a marriage with so much promise, divorce became inevitable. They were, however, still tied together by Ishaan and it was not until the wife removed him, wrongfully, to England in September 2012 that they finally completely separated.
Since then they have each spent the staggering sum of about £430,000 on worldwide legal costs in England, Singapore and India — a combined total of over £860,000 (a significant part of those costs relates to litigation about Ishaan). At a hearing on 15 May 2013 I begged these parties to resolve their differences, and I referred in paragraph 12 of my short judgment (now at Bundle 5, Section I, p.191) to financial suicide. At paragraph 4 of my formal order that day (now at Bundle 1, Section A, p.63) I urged and beseeched the parties to travel to London and attend the present hearing "so that … they can be helped to settle all or as much as possible of the financial issues in this case". Neither party was personally present on 15 May 2013, each being in Singapore, but they will have seen the order and the transcripts of the judgment and, indeed, of the whole hearing.
At the outset of, and again during the course of, the present hearing I have repeatedly urged the parties to stand back from the fray and to focus on settling the relatively straightforward financial issues. There is very little dispute about the income or assets, and I expressly pointed out that during the hearing there was obvious litigation risk for each party as to the outcome on jurisdiction. It was thus a particularly good moment to seek to compromise. I made the same point on 15 May — see the transcript of my judgment at internal page 78 (now Bundle 5, Section I, p.187). They have not been able to do so. The sustained forensic struggle throughout the hearing was painful to observe.
Paragraph 11 of my judgment of 15 May records that at that date the estimated combined costs worldwide, to the end of the present hearing, was £600,000. So actually have already exceeded that estimate by a staggering £260,000. Mr Timothy Scott QC, on behalf of the husband, commented to the effect that costs estimates are notoriously unreliable. This is not marginal unreliability. This is a costs overshoot of no less than a quarter of a million pounds in the space of just two months. These parties are successful and prosperous, but they are not multi-millionaires. Their total net wealth is around £4 million. That they have already committed nearly one-quarter of that wealth to highly charged litigation, and an atmosphere of intense emotion day after day in the courtroom, merely serves to underline the tragedy.
During the course of his oral evidence, the husband acknowledged that the present battleground as to jurisdiction was motivated by his "perception as to the pay-out". Of course, there is an equal perception by the wife that she would receive more financial provision after a divorce here than in India, where the husband is seeking to litigate and obtain a divorce. Wherever they are divorced, there are obvious both strengths and weaknesses to any financial claim by the wife. The obvious weaknesses are that the marriage was a very short one and such wealth as there is is almost all in investment properties already owned by the husband before the parties ever met. The strengths are the dependence now of Ishaan upon the wife and the undoubted severe, even if temporary, setback to the wife's career that has flowed from the marriage and the move to Singapore and from its breakdown. Somewhere the husband will have to make fair provision for the wife. How tragic that instead of concentrating on that need and issue so much of the firepower has been directed to the issue of jurisdiction.
I stress that all the above observations are made entirely neutrally, for I have no idea what offers (if any) one or other party may have made or rejected and where, therefore, any intransigence may lie.
The context and the issues
So it is that I now have to resolve the disputed issues as to domicile and jurisdiction. I wish to stress at the outset, as I said several times during the hearing, that these issues require me to decide, as best I can, what the relevant true facts are and to apply the relevant law to them. I am not making any discretionary decision and I have no discretion at all at the present hearing or in this judgment.
On 20 August 2012 the wife, although living at that time in Singapore, issued a petition for divorce in the Principal Registry of the Family Division here in London. It is common ground that on that date both parties were, and recently had been, habitually resident in Singapore. But the wife alleges that both, or alternatively at least one, of them was domiciled in England and Wales on that date. The husband very strongly denies that either of them was domiciled in England and Wales on 20 August 2012. But he accepts that if, contrary to his case, one or both of them were so domiciled, then this court does have jurisdiction to hear the petition for divorce since, as is common ground, there is no connecting factor with any other contracting state of the European Union.
As it is the wife who presented the petition and seeks an English divorce, the overall burden of proof is upon her to prove that one or both of the parties was domiciled here on the relevant date. As her own domicile of origin is admittedly and undoubtedly Indian, the burden is upon her to prove that, as she claims, she later acquired an English domicile of choice. The burden is also upon her to prove that, as she asserts but he denies, the husband's domicile of origin is English; or, if not, that he later acquired an English domicile of choice. If, however, the wife does prove that each of them did, immediately prior to the move to Singapore, have an English domicile (whether of origin or choice) then the burden shifts to the husband to prove that such domicile was lost when the parties moved respectively to Singapore.
The standard of proof of disputed facts is the balance of probability. As a domicile of origin is more enduring and more adhesive than a domicile of choice, more powerful and cogent facts (proved to the balance of probability) are required before it can be concluded that the domicile of origin has been displaced by a domicile of choice.
The wife's domicile of origin
Both parties are of Indian Hindu descent. The wife was born, brought up and educated in, and lived in, India until the age of 25. Her parents were, and are, domiciled and resident in India. Her domicile of origin is clearly Indian.
The husband's domicile of origin or domicile of choice when he attained 16
I consider next the much more controversial issue of the husband's domicile of origin and the linked issue whether there was any change in his domicile during the period of his dependence, for these purposes, upon his father, i.e. until the husband attained the age of 16 in September 1987. Until then his domicile was necessarily that of his father, the late Mr Bikas Ray. I will for convenience and clarity, but meaning no lack of respect to the memory of the gentleman, refer to him throughout as "Bikas".
It is again beyond doubt or issue that the domicile of origin of Bikas was Indian. He was born in Calcutta of Indian parents in 1935. He first moved to England in 1964 at the age of 29. With the exception of one period of about seven months during 1970 when he returned to live in India, he was to remain living in England for the rest of his life. If, which is hotly contested, Bikas had acquired an English domicile of choice by the time the husband was born in September 1971, then the husband's domicile of origin is English. If not, then the husband's domicile of origin is Indian, although he has never lived there and shows no intention of ever doing so.
If Bikas acquired an English domicile of choice after September 1971, but before September 1987, then that became the domicile of...
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