Mark v Mark
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Waller |
| Judgment Date | 26 April 2006 |
| Neutral Citation | [2004] EWCA Civ 168,[2006] EWCA Civ 915 |
| Docket Number | B1/2002/1923+2248,B4/2005/0840/A & B4/2005/0840/B |
| Court | Court of Appeal (Civil Division) |
| Date | 26 April 2006 |
[2004] EWCA Civ 168
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(Family Division)
MR JUSTICE HUGHES
Royal Courts of Justice
Strand,
London WC2A 2LL
Lord Justice Thorpe
Lord Justice Waller and
Lord Justice Latham
B1/2002/1923+2248
CHARLES HOWARD QC and PHILIP MARSHALL (instructed by Messrs Hughes Fowler Carruthers of London WC2A 1DT) appeared for the appellant.
CHIMA UMEZURUIKE and ADEDAMOLA ADEREMI (instructed by Messrs Osibanjo Ete & Co of London SE5 8QZ) appeared for the respondent.
THORPE LJ:
INTRODUCTION
This Appeal requires this court to decide the extent to which an overstayer is disqualified by illegality from asserting an habitual residence or a domicile of choice in this jurisdiction in order to satisfy the provisions of Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. That subsection is in the following terms:-
"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage—(a) is domiciled in England or Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date"
The section has since been amended to reflect the provisions of the council regulation Brussels II (1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses) which came into force on the 1 st March 2001. In its amended form, Section 5(2) now reads:-
"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) – (a) the court has jurisdiction under the Council Regulation: or (b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun"
The petition with which this Appeal is concerned was filed on the 17 th June 2000. Thus the court's jurisdiction is to be determined by Section 5(2) as originally enacted. The long interim since the filing of the petition has been filled with expensive and strategic skirmishes between the parties in this jurisdiction and in Nigeria. In consequence, the costs in this jurisdiction of the two sides together now comfortably exceed £2,000,000, without having achieved either the dissolution of the marriage or the more acute question of what share of the husband's considerable fortune should be made over to the wife in order to determinate the husband's financial responsibilities for her.
The History of the Families
The Appellant husband is a fifty-five year old Nigerian. He has married six women by customary marriages. (He subsequently parted from the third by customary divorce) . The respondent wife was the fourth wife in this series. She is a fifty-two year old Nigerian. At the date of their customary marriage (perhaps on the 12 th February 1979) the husband was an army major and the wife a practising lawyer, with her own chambers in Port Harcourt. By means not revealed in the judgments below the husband amassed a great fortune in the 1980s. In consequence he was able to arrange for the four children of this marriage to be born in London and to be educated in Europe, principally in England. He provided a London home for the family. He had a man of business in Northern Ireland and a personal assistant in London to assist in the management of his international fortune. From about 1990 the wife lived mainly in London. She has not returned to Nigeria since 1993. It was in November 1993 that General Abacha seized power in Nigeria and the husband was forced into exile. That no doubt contributed to the decision to upgrade the London house. The current property in Kingston upon Thames is worth in excess of £2,000,000.
During his exile the parties were principally based in London. However, both travelled, for business (in the husband's case), holidays, or, (in the wife's case) study. Indeed in 1995 the husband took his sixth customary wife whilst in Ghana.
The husband's exile ended with the death of General Abacha on 8 th June 1998. He returned to Nigeria in the following September. The wife expected to return with him, but it was not to be. He declined to take her or to arrange for her to follow him. By July 1999 it was plain to her that she was on her own. By June 2000 the husband was communicating with her through solicitors
On his return to Nigeria the husband was elected a Senator in the Upper House and has since become Chairman of the Senate Committee for Banking and Commerce and a member of the committees for Internal Affairs, African Co-operation, and National Security and Police.
The Immigration History
Prior to the 1993 coup the parties had entered the United Kingdom on visitors' visas, obtaining leave to remain for periods of six months at a time. However, once in exile the husband obtained on 2 nd April 1994 a work permit enabling him to reside in the United Kingdom. This was granted on the premise that he was employed by the construction company controlled by his man of business. His salary of £40,000 per annum was subject to the usual PAYE deductions. This work permit expired on 30 th April 1998. However it offered nothing for the wife and the children. Accordingly the wife sought inclusion on his permit. The Home Office required a marriage certificate. She did not have a certificate of the customary marriage, nor could she enter Nigeria to seek one. According she and the husband went through a ceremony of marriage at the Merton Register Office on 28 th May 1996. Given that the prior polygamous marriage was recognised in this jurisdiction as a valid marriage, the Merton ceremony was a nullity. However, it was effective to obtain on 6 th June 1996 for the wife and the two youngest children leave to remain until 30 th April 1998. In his judgment of 14 th March 2002 Hughes J found that the wife also saw the ceremony as cementing her position as principal wife, vainly, as things turned out.
In November 1996 the husband procured for himself and his family Belizean nationality. That maybe an indication of his insecurity and of his anxieties for the future. The immediate advantage was the issue of Belizean passports to all the family. During this period the wife joined a religious group that entailed attendance at international bible studies and conferences. She attended one such in Florida from October 1997 to April 1998.
The husband during her absence belatedly addressed the expiry of his work permit. He instructed a specialist solicitor to apply for indefinite leave to remain for himself and the two youngest children. Leave was granted on the 24 th April 1998. Technically the wife could not be included, since at the date of the application she was in Florida. But it seems reasonably clear that the husband was abandoning her since he did not inform her of the instruction he had given to his solicitor, nor did he warn her of the urgent need to apply when she returned from Florida on 29 th April 1998. To quote the finding of Hughes J in his judgment under Appeal at paragraph 28:-
"Although she had taken her own advice in 1996, he had otherwise been responsible for travel documents. It was he who had obtained the Belizean passports. The wife's leave to remain was, as he knew perfectly well, based on his, because she was dependent upon him. Since however he did nothing to include her, and since on her return she did nothing either, it came about that after 30 th April 1998 she had no leave to remain and her status, unlike all the rest of the family, was that of an overstayer."
Later in 1998 or in 1999 during one of the husband's visits to London, the wife gave the husband her passport so that he could instruct his solicitor to regularise her position. It seems that nothing was done for her and in due course she recovered her passport.
Next she gave her passport to the husband's man of business so that he could apply for indefinite leave on her behalf. His curt response of 2 nd July 1999 was :-
"Unfortunately I cannot advise any positive outcome and would need confirmation and help from (the husband) to proceed"
The wife later had the opportunity to take advantage of a scheme opened between February and October 2000 to assist overstayers with a good case for leave to remain. She was advised that whilst an application was pending it would be treated as withdrawn if she left the United Kingdom. Her cavalier response was to leave on three separate occasions using her Belizean passport, the existence of which she concealed from her advisors. On each re-entry she obtained a six months visitors visa, misrepresenting to the immigration authority that she intended to depart within that period, when her clear intention was to remain indefinitely. When proceedings were underway, she equally concealed these circumstances from her solicitors and the court. The full story only emerged during the course of her oral evidence. Hughes J described her cavalier approach and concealment as lamentable but pointless, since her husband had full knowledge of her Belizean nationality and passport.
The wife's position was only finally regularised by the grant of indefinite leave to remain on 9 th March 2002. However Hughes J observed that leave was granted on the unfounded basis that the wife had been continuously in the United Kingdom since November 1995...
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