J v U; U v J (No. 2) Domicile [2017] EWHC 449 (Fam)

Analysis

The question before the court was, in the context of divorce proceedings between the petitioner and the respondent, whether either party to the marriage were domiciled in England and Wales. The respondent’s position was that neither were so domiciled, such that the divorce petition of the petitioner should be struck out for want of jurisdiction.

At the time of the proceedings the respondent was 72 years old. He was born in Mumbai, India. He moved to London with his family when he was 13 or 14. He studied in England, married and purchased a property in London, and pursued a career with the UK Civil Service. Following the breakdown of his marriage, and commencement of a new relationship with Ms. B, the respondent moved to Luxembourg in 1995, and then, in 1997, to Brussels. He purchased a property in Brussels. His relationship with Ms. B broke down, and he met the petitioner while he was living there. In 2002 he moved back to London and the petitioner lived with him. The petitioner was posted to Albania for her work, and he spent extended periods with her there between 2003 and 2005.

The respondent was 44 years old. She had dual nationality: British and Irish. She had grown up in Ireland, and was educated there. She moved to Manchester when she was 23. She obtained a British passport in 1995, and she lived in England continuously until 1997, when she moved to Brussels for work. She moved back to England in 2001, where she lived with the respondent, but in November 2002 moved to Tirana, Albania for work.

In August 2005, the parties married in Italy (where the petitioner had owned a home since his late twenties). Their first child was born in 2006 in London. The petitioner remained there for several weeks, the parties travelled to Italy for the period of the petitioner’s maternity leave, and then the petitioner moved back to Albania. In October 2006, the respondent moved to live in Bosnia. Between 2006 and 2009, the parties conducted a long-distance marriage between Albania and Bosnia. In 2009, following the birth of their second child, the petitioner was posted to Sarajevo, and the family lived together until Autumn 2016

Held:

1. 1) The petitioner had lived in England sufficiently to qualify for establishing domicile in England and Wales, notwithstanding the fact that this was temporary. She maintained strong practical, financial, and fiscal links with the UK throughout her multiple postings. London was viewed by her as her ‘base’ in place of Ireland, and she a developed from 1995 onwards a ‘singular and distinctive’ relationship with London. She therefore acquired, from 2000 at the latest, a domicile of choice in England and Wales, which had not been lost notwithstanding her various postings abroad.
2. 2) The respondent probably acquired a domicile of choice in England based on (a) the duration of his lengthy residence here, (b) his first marriage (to an English woman), (c) the establishment of a family home in London, (d) his investment of additional property in London (the Fulham property), and (e) the tenuous continuing links to his domicile of origin.
3. 3) However the respondent’s ties with England and Wales had withered over a period of time since 1995. He had more of an emotional investment in Italy or even Bosnia, which disrupted the minimal existing threads with the UK. While he once had a domicile of choice in England, this had been lost or abandoned and his domicile of origin in India had revived.
4. 4) The court’s jurisdiction was founded on the basis of the petitioner’s domicile. However it was for the respondent to demonstrate that the divorce and ancillary matters might be tried more suitably for the interests of all the parties and the ends of justice in the Municipal Court of Sarajevo.
5. 5) Having regard to the balance of factors, the respondent had failed to do so. The petitioner no longer resided in Sarajevo, whilst his own immigration status was precarious. There were no marital assets in Bosnia, and thus the Bosnian court had limited jurisdiction to make orders in relation to them. The parties were familiar with the English court process, and they spoke English fluently (while neither spoke Bosnian well), and London was their common and constant reference point during the marriage.
6. 6) The petition and ancillary financial remedy proceedings were to proceed in the English Court.

JUDGMENT THE HONOURABLE COBB: J [1] 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 (s1(2)(b) Matrimonial Causes Act 1973). Her petition contains the following contentions, …

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