Marinos v Marinos

JurisdictionEngland & Wales
CourtFamily Division
JudgeMR JUSTICE MUNBY,Mr Justice Munby:
Judgment Date03 September 2007
Neutral Citation[2007] EWHC 2047 (Fam)
Date03 September 2007
Docket NumberCase No: FD07D00539

[2007] EWHC 2047 (Fam)

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

MR JUSTICE MUNBY

Case No: FD07D00539

Between
Jane Elizabeth Marinos
Petitioner
and
Nikolaos Lykourgos Marinos
Respondent

Mr Richard Castle (instructed by The International Family Law Group) for the Petitioner (wife)

Mr Nicholas Allen (instructed by RadcliffesLeBrasseur) for the Respondent (husband)

Hearing dates: 5–6 July 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be published.

Mr Justice Munby:
1

This case raises interesting points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised).

The background

2

The background can be sketched in very shortly.

3

The husband is Greek, the wife is English. The husband came to this country as a student in 1981. They met in this country in 1988 and married (in this country) in 1992. They have two children, both born in this country: a son L born in 1996 and another son, A, born in 2000. The husband – he is a medical doctor – moved to Greece to work in October 2002. The wife and the two children followed in December 2002. The husband accepts that the move to Greece was initially for a 'trial' period of one year, later extended, he says, by mutual agreement. The wife says that it was a temporary relocation, capable of termination at any time. Be that as it may, both children went to school in Greece, L starting school in January 2003 and A beginning at nursery in September 2003 and joining L at his school in September 2006. They remained there until this year. On 31 January 2007 the wife returned to this country with the two children.

4

The original matrimonial home had been a house in Holland Park which the husband had bought before the marriage. In 1996 that property was sold and the parties bought a house in Chiswick. In September 2000 the husband's employment took him to Norfolk. They let the Chiswick property to tenants and bought a house in Norwich. Following the move to Greece that also was let. The tenancy agreement dated 22 November 2002 shows the husband and wife's address as being in Greece. The property was re-let to new tenants in June 2003. The tenancy agreement dated 26 June 2003 again shows the husband and wife's address as being in Greece. The Chiswick property was re-let to new tenants in September 2006. When the wife and children came back to this country on 31 January 2007 both properties were still tenanted, though the wife had on 3 January 2007 given the agents instructions to serve notice to quit on the tenants of the Chiswick property. The notice was given the following day (4 January 2007) in terms permitting the wife to reoccupy the property with the children from 3 March 2007.

The proceedings

5

On 1 February 2007, the day after her return to this country, the wife issued a petition for divorce in the Principal Registry. Paragraph 3 of her petition asserts that the court has jurisdiction under Article 3 on the ground that:

“[she] is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the presentation of the petition.

Throughout at [an address at Uttoxeter in Staffordshire].”

That address is in fact the address of the wife's parents. It may be noted that in her statement of arrangements for the children, also dated 1 February 2007, the wife, although giving the Uttoxeter address as “the address at which the children now live,” said that “The children and I are living at The Premier Travel Inn … London temporarily since the children started their new schools, returning to Staffordshire at weekends.”

6

On 8 March 2007 the husband filed an acknowledgement of service disputing jurisdiction “on the grounds that the Petitioner & I are both domiciled & habitually resident in Greece, not the UK.” On 20 March 2007 the husband issued an application for a stay of the petition on that ground. It was this application that came on for hearing before me on 5 July 2007.

7

I should add that in the meantime there were also proceedings between the parties brought by the husband under the Hague Convention. That matter came before Sumner J, who by an order dated 21 June 2007 dismissed the application. A subsequent application for permission to appeal was refused by the Court of Appeal on 31 July 200Nothing turns on any of this except that in his judgment ( Marinos v Marinos [2007] EWHC 1404 (Fam)) Sumner J recorded (at para [9]) as being common ground between the parties that the children had been habitually resident in Greece when they left in January 2007 and found (at para [14]) that the wife's return alone to this country with the children and her remaining here with the children was with the husband's consent.

8

There are also ongoing proceedings in Greece, both in relation to the children and in relation to the husband's petition for divorce issued there on 5 April 2007.

9

The hearing before me lasted two days. Mr Nicholas Allen appeared for the husband and Mr Richard Castle for the wife. I heard oral evidence from both the wife and the husband. Save in point of detail the oral evidence added little to what had been said in the parties' affidavits. The wife reiterated that she had not seen the move to Greece as permanent and that she had always considered this country to be her home. Greece was not her home, it was somewhere she was staying. All her ties were here. The only thing that attached her to Greece was the children. She reiterated that she was the children's primary carer and described them as “the centre of my life – they are very, very important to me.” She accepted that she was in Greece slightly more than in this country and said “I would consider myself resident in both countries.” She accepted that the children had been habitually resident in Greece until 31 January 2007. The husband in his oral evidence said that his wife had had difficulty settling in Greece. He suspected that she was not happy in Greece and said he was not surprised that she did not consider Greece her home.

10

I reserved judgment, which I now hand down.

The law

11

It is convenient to start with the law. Article 3 of the Regulation provides as follows:

“1 In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

– the spouses are habitually resident, or

– the spouses were last habitually resident, insofar as one of them still resides there, or

– the respondent is habitually resident, or

– in the event of a joint application, either of the spouses is habitually resident, or

– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

2 For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”

As will be appreciated, the wife's petition is founded on the final limb of Article 3(1)(a).

12

It is not disputed that the wife can satisfy the domicile requirement in the final limb of Article 3(1)(a). Her domicile of origin was in England and Wales. The husband accepts that she either never acquired a domicile of choice in Greece or that, if she did, she lost it when she left Greece on 31 January 2007, whereupon her domicile of origin revived.

13

So the case turns entirely on whether the wife can prove (i) that on 1 February 2007 she was “habitually resident” in England and Wales and (ii) that she had “resided” in England and Wales since at least 31 July 2006 or 1 August 2006. (On the facts of this particular case nothing really turns on which is the relevant date and I do not take up time considering how precisely the period of six months under the Regulation is calculated.)

14

It will be noted that the final and penultimate limbs of Article 3(1)(a) both have the same essential structure, jurisdiction being located in

“the courts of the Member State … in whose territory … the applicant is habitually resident if he or she resided there for at least [a specified period] immediately before the application was made.”

The only difference is in the specified period. In the one case, if the applicant can establish nationality or domicile (as the case may be), six months, in the other case, where the applicant cannot rely upon nationality or domicile (as the case may be), twelve months. But the wording which is critical for present purposes is the same in each limb.

15

The corresponding French text reads as follows:

“les juridictions de l'État membre … sur le territoire duquel se trouve … la résidence habituelle du demandeur s'il y a ré sidé depuis au moins [etc].”

There is, so far as I can see, no difference between the language of the English and French texts and nothing in the French text which throws any additional light on anything I have to decide.

16

A number of points arise on this in relation to which there is, I am told, little direct judicial authority either in this country or, so far as counsel are aware, anywhere else in the European Union.

17

Both Mr Allen and Mr Castle suggest that for the...

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