U (Petitioner) v J
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Cobb |
| Judgment Date | 08 March 2017 |
| Neutral Citation | [2017] EWHC 449 (Fam) |
| Docket Number | Case No: ZC15D03901/ZC16P00841 |
| Court | Family Division |
| Date | 08 March 2017 |
[2017] EWHC 449 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Cobb
Case No: ZC15D03901/ZC16P00841
J V U; U V J (no.2) (domicile)
Charles Hale QC & Jonathan Rustin (instructed by Anthony Gold & Co) for U, the Petitioner Wife
Timothy Scott QC & William Tyzack (instructed by Stewarts Law LLP) for J, the Respondent Husband
Hearing dates: 20, 22 and 23 February 2017
Approved Judgment
This version of the judgment, as handed down, may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
By divorce petition dated 28 July 2015, the Petitioner seeks a dissolution of her marriage from the Respondent; she asserts that the marriage has irretrievably broken down and in this regard she relies on the Respondent's unreasonable behaviour ( section 1(2)(b) Matrimonial Causes Act 1973). Her petition contains the following contentions, crucial to establishing the jurisdiction of the English Court to grant this relief, and any other relief ancillary to the divorce:
i) That the Petitioner and Respondent are habitually resident in England and Wales;
ii) That the Petitioner is domiciled in England (the requirement being that "either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun": section 5(2) Domicile and Matrimonial Proceedings Act 1973: 'DMPA 1973').
She further asserts that England would be the forum conveniens for the determination of the divorce and ancillary matters.
The Respondent accepts that the marriage has broken down. He has however filed an Answer to the Petition, contesting jurisdiction, specifically asserting that neither he nor the Petitioner are habitually resident in England and Wales, and that the Petitioner is not domiciled here either. He has applied to strike out the petition.
The Petitioner's case based on habitual residence was abandoned before I started hearing the issues. Indeed, in determining a prior application issued by the Petitioner under the Children Act 1989 in September 2016 (which I refer to again below – see [10] and [32]) Bodey J recorded that the Petitioner also abandoned her contention that the parties were habitually resident in this jurisdiction; that application was rejected further on separate grounds (see J v U [2016] EWHC 2481 (Fam)).
The Respondent disputes that the Petitioner is domiciled here.
At an earlier stage of these proceedings, and notwithstanding that it had not been specifically pleaded by the Petitioner that the Respondent is domiciled in England, the Respondent's own domicile was brought into focus. He denies that he himself is, or was ever, domiciled in this jurisdiction. It was agreed by all parties at the outset of this hearing that I should nonetheless consider the domicile of both parties, and if I was to conclude that the Respondent is domiciled in this country, I would be likely to give leave to the Petitioner to amend her petition.
The task of establishing the domicile of these parties, on these particularly unusual and complex facts, is, I suspect, about as difficult a forensic exercise as one might encounter in a case of this kind.
The Respondent contends that England is not the forum conveniens of the matrimonial dispute; he has applied for a stay under para.9 of schedule 1 to the DMPA 1973 and/or at common law. In September 2015, the Respondent issued divorce proceedings in the Municipality Court in Sarajevo, Bosnia, where all the family then lived. Those proceedings were dismissed by that court on the basis that the Petitioner was able then to assert diplomatic immunity in relation to the suit. This immunity is no longer available to her (she has moved to live in Serbia, albeit that the Respondent and children remain in Bosnia), and the Respondent has filed a fresh petition in Sarajevo (3 November 2016), which awaits judicial consideration. The Petitioner has answered that petition, taking issue with the Bosnian Court's jurisdiction to deal with the claim. Nonetheless, on 29 November 2016, the Petitioner issued her own application in the Municipal Court of Sarajevo seeking a determination of child arrangements for the two children. The Respondent maintains that the courts of Sarajevo offer a more appropriate forum.
The issues at this hearing have been focused on:
i) Whether the Petitioner, whose domicile of origin is Ireland, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
ii) Whether the Respondent, whose domicile of origin is India, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
iii) If either party has domicile here, whether it has been demonstrated that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action ( forum non conveniens).
In assisting me to reach a decision I have read the statements of evidence of the parties, heard their oral evidence, considered and analysed a number of documents submitted by each, and received persuasive and able submissions – both written and oral – from counsel.
The law on domicile
The law on domicile is summarised distinctively and concisely in Dicey & Morris (15 th edition) ("Dicey"), and has been widely discussed in a number of relevant and recent authorities (the numbers in brackets in the paragraphs which follow correspond with the text of Dicey). From these sources, I divine the following principles which are relevant to the current dispute and which I apply to these facts:
i) No person can be without a domicile (Dicey Rule 5); no person can at the same time and for the same purpose have more than one domicile (Dicey Rule 6);
ii) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home (Dicey 6R-001);
iii) Every person receives at birth a domicile of origin (Dicey & Morris Rule 9); this remains "of great importance" (Dicey 6–026), and is said to be "more tenacious" (6–031) than other forms of domicile; "it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice" (6–031);
iv) Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise (Dicey & Morris 6R-033); residence requires something more than casually passing through a country; it connotes becoming an "inhabitant" of the country (6–034);
v) Residence for a short period of time, even a few days, may be sufficient to establish domicile of choice (6–036); the length of residence is not important in itself;
vi) An intention to reside permanently, or for an unlimited time, in the given country must exist (6–039), the animus manendi; naturalisation is an indicator of intent (6–041). In Udny v Udny (1869) LR 1 Sc & D 441, it was said (Lord Westbury) that:
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established." (emphasis by underlining added)
In Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 at [14], Arden LJ observed:
"Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days". (emphasis by underlining added)
vii) In considering a person's domicile, the court is expected to consider carefully the available evidence; there are many factors which may indicate an intention, indeed, "there is no act, no circumstance in a man's life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be of more weight with regards to determining this question than an act which was of more importance to a man in his lifetime." ( Drevon v Drevon (1864) 34 L.J. Ch 129 at 133 (Dicey 6–048); some facts which have great significance in one case may be of little consequence in another;
viii) 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, and not otherwise (Dicey Rule 13);
ix) Domicile of choice is lost by ceasing to...
To continue reading
Request your trial
-
Una Mary Kelly v John Norman Pyres
...EWCA Civ 1368 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE (Family Division) Mr Justice Cobb [2017] EWHC 449 (Fam) Royal Courts of Justice Strand, London, WC2A 2LL Lady Justice King Lord Justice Newey and Mr Justice MacDonald Case No: B6/2017/0866 Between......