Mark v Mark (divorce: jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Year | 2004 |
| Date | 2004 |
| Court | Court of Appeal (Civil Division) |
Divorce – Jurisdiction – Habitual residence – Domicile of choice – Whether illegal status imposing absolute bar to jurisdiction founded on habitual residence or domicile of choice – Domicile and Matrimonial Proceedings Act 1973, s 5(2) – Human Rights Act 1998, Sch 1, Pt 1, art 6(1).
The husband and wife were Nigerian. From 1990, the wife had lived mainly in London. Their four children were born in London and the husband provided a home there for the family. The wife had not returned to Nigeria since 1993 when there was a coup d’etat and the husband was forced into exile. He obtained a work permit enabling him to reside in the United Kingdom, and the wife and two youngest children were later included on the permit, giving them leave to remain until April 1998. The husband and two children were granted indefinite leave to remain after the expiry of the work permit, but the wife did not apply as she was out of the country, and the husband did not inform her of the application. Therefore, she was an overstayer until she was granted indefinite leave to remain in 2002. The husband’s exile ended in 1998. The wife expected to return to Nigeria with him but he declined to take her or arrange for her to follow him. In 2000, on the husband’s invitation, the wife petitioned for divorce in England. However, the husband challenged the court’s jurisdiction on the ground that, as an overstayer, the wife lacked the necessary qualifications to petition for divorce set out in s 5(2) of the Domicile and Matrimonial Proceedings Act 1973, which required at least one of the parties to the marriage to be either domiciled in England or Wales on the date when the proceedings were begun, or to have been habitually resident for the previous 12 months. The judge held, inter alia, that the wife had not been habitually resident in the jurisdiction throughout the 12 months immediately preceding the presentation of her petition because during that period, as an overstayer, her presence in the country had been unlawful. However, he held that she had a domicile of choice in the jurisdiction. The husband appealed against the decision on domicile of choice, and the wife, by way of respondent’s notice, challenged the decision on habitual residence.
Held – (1) The rule that an illegal immigrant was debarred from claiming benefits, entitlement to which was dependent on some period of habitual residence in the jurisdiction was a rule of public policy, which required re-casting following the enactment of the Human Rights Act 1998. In the instant case, although there were many features which rendered it unsuitable for the formulation of any general principle, a rule of public policy that terminated proceedings so far advanced would be perverse and incompatible with the wife’s
rights under art 6(1). Therefore the judge’s refusal of jurisdiction advanced on the grounds of the wife’s habitual residence would be reversed.
(2) The imperative to prevent the acquisition by illegal conduct of what might be described as public law benefits has driven, unnecessarily, the adoption of an absolute rule which in the context of private rights is hard to understand or justify. Absolute rules had little place in family law. In the context of the court’s jurisdiction to entertain a petition for divorce or judicial separation, the court should enjoy a margin of discretion in determining whether or not an element of illegality tainted the entry or stay within the jurisdiction of either the petitioner or the respondent as to preclude the acquisition of a domicile of choice. In the instant case, the wife had a domicile of choice in the jurisdiction.
Accordingly, the appeal would be dismissed.
Per Waller LJ. The question of habitual residence is a factual one. The illegality of a person’s residence may be relevant to considering that factual question. Thus someone who has not got a permanent home, is evading the immigration authorities, or someone who is under an order for deportation will be unlikely to be able to establish habitual residence. But at the other end of the spectrum where someone has a permanent home, married here and has simply overlooked obtaining an extension of their leave to be here, the answer will be that they will be able to establish habitual residence.
Cases referred to in judgmentsAbdul Manan, Re [1971] 2 All ER 1016, [1971] 1 WLR 859, CA.
Abelheim v Abelheim [1918] SR 85.
Ah Yin v Christie (1907) 4 CLR 1428, Aust HC.
Airey v Ireland (1979) 2 EHRR 305, [1979] ECHR 6289/73, ECt HR.
Bashir v Bashir (1 February 1995, unreported), Aust Fam Ct.
Frost (Inspector of Taxes) v Feltham [1981] STC 115, [1981] 1 WLR 452.
Golder v UK (1975) 1 EHRR 524, [1975] ECHR 4451/70, ECt HR.
Ikimi v Ikimi[2001] EWCA Civ 873, [2001] 2 FCR 385, [2002] Fam 72, [2001] 3 WLR 672, [2001] 2 FLR 1288.
Jablonowski v Jablonowski (1972) 28 DLR (3d) 440, Ont HC.
Lim v Lim [1973] VR 370, Vic SC.
Marriage of Dick, Re (1993) 15 Cal App 4th 144, California Ct of Apps.
Plyler v Doe (1982) 72 L Ed (2d) 786, US SC.
Puttick v A-G [1979] 3 All ER 463, [1980] Fam 1, [1979] 3 WLR 542.
R v Secretary of State for the Home Dept, ex p Margueritte [1982] 3 All ER 909, [1982] 3 WLR 754, CA.
Salacup v Salacup (1993) FLC 92-431, Aust Fam Ct.
Shah v Barnet London BC [1983] 1 All ER 226, [1983] 2 AC 309, [1983] 2 WLR 16, HL.
Smith v Smith 1962 (3) SA 930, SA Fed SC.
Solomon v Solomon (1912) 29 WN(NSW) 68.
AppealThe husband appealed against the decision of Hughes J, dated 14 March 2002, whereby he dismissed the husband’s application to stay divorce proceedings brought by the wife. The wife cross-appealed. The facts are set out in the judgment of Thorpe LJ.
Charles Howard QC and Philip Marshall (instructed by Hughes Fowler Carruthers) for the husband.
Chima Umezuruike and Adedamola Aderemi (instructed by Osibanjo Ete & Co) for the wife.
Michael Nicholls as advocate to the court.
THORPE LJ. INTRODUCTION[1] 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 s 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 (Council Regulation (EC) 1347/2000 (OJ 2000 L 160 p 19) 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 1 March 2001. In its amended form, s 5(2) now reads:
‘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 …’
[2] The petition with which this appeal is concerned was filed on 17 June 2000. Thus the court’s jurisdiction is to be determined by s 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[3] The appellant husband is a 55-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 52-year old Nigerian. At the date of their customary marriage (perhaps on 12 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.
[4] 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.
[5] The husband’s exile ended with the death of General Abacha on 8 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
[6] On his return to Nigeria the husband was elected a Senator in the Upper...
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Mark v Mark
...manendi. That was, however, a question of fact and not law. Accordingly, the appeal would be dismissed. Decision of the Court of Appeal [2004] 1 FCR 385 affirmed. Cases referred to in opinionsAbdul Manan, Re [1971] 2 All ER 1016, [1971] 1 WLR 859, CA. Adlam v Law Society [1968] 1 All ER 17,......