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J v U; U v J (No.2) (Domicile) [2017] EWHC 449 (Fam) - (Mr Justice Cobb) 8 March 2017

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Application for the dissolution of a marriage where the domicile of the parties was in dispute.

Summary:  The wife (“W”) had been born in England to Irish parents (and had dual nationality) and the husband (“H”) had been born in India to Indian parents. He had moved to the UK when he was a teenager. She had grown up in Ireland, moving to England for 18 months to study for a masters’ degree.  The couple had married in Italy (a country H regarded as his “spiritual home”) in 2005 and had had two children together. The couple were in the diplomatic service and had spent much of their married life together outside of England. Indeed, at the time of the proceedings, W was living in Serbia and H and the children were living in Bosnia.

In July 2015, W issued a petition based on her domicile being England and that England was the forum conveniens. H argued that W was not domiciled in England and neither was England the forum conveniens. He applied for a stay and issued divorce proceedings in Bosnia. The Bosnian proceedings were dismissed due to W’s diplomatic immunity but W went on to issue children proceedings in Bosnia in 2016. 

H highlighted that W had lived for only short periods of time in England, that they had married in Italy, W had maintained connections with Ireland, described herself as Irish on her CV, spoke Irish, had never taken a holiday in England and always sought to work overseas. He even pointed to the fact that their children were not given classic English names. W, by way of counter-argument, said that she had paid national insurance since 2002, that they had returned to London for any major medical treatment, even coming to England for medical checks when she was pregnant with their first child. They were all registered with GPs in London though she was also registered with a doctor in Bosnia as well.

The issues before the court were:

  • had W acquired a domicile of choice of England?;
  • had H acquired a domicile of choice of England?; and
  • was there another more appropriate jurisdiction to deal with the divorce?

Held:  After a lengthy consideration of all the evidence, Mr Justice Cobb concluded that W had a domicile of choice of England – London had been her “centre of gravity” and, despite all the travel, London was where W considered her permanent home. He went on to find that H had, at one time, also had a domicile of choice of England but that no longer subsisted H’s connections with England were no longer permanent and he no longer viewed the country as his home. Instead, H had a domicile of choice of India. The proceedings would take place in England. 

It is fair to say that Cobb J was less than impressed with H’s behaviour and litigation conduct and that behaviour did influence his decision making. Incidents included H being “less than forthcoming” in his disclosure, deliberately removing W’s files from the family computer to frustrate her claims, attempting to remove the Matrimonial Homes Rights Notice W had registered and changing his will to exclude W from benefitting. 

Insofar as the forum conveniens argument was concerned, the judge emphasised that it was for H to show that the case could be “tried more suitably for the interests of all the parties and the ends of justice” in Bosnia. The judge found that Bosnia was not a more appropriate form and directed that both the divorce and financial remedy proceedings should proceed here. It was highly relevant that W was no longer living in Bosnia and there were no assets there, the Bosnian courts only had limited jurisdiction to make orders against assets held outside their jurisdiction, the litigation had already been ongoing for 12 months in England, London was the couple’s “common reference point” and neither spoke Bosnian fluently. 

Comment

The 12 point summary of domicile and how it can be changed makes the case report worth reading.

Interestingly, when the parties had married, they had signed a pre-nuptial agreement. It had been prepared by a dual-qualified Italian and English lawyer and referred to both English law and the Italian civil code as the relevant law. As one commentator has noted, mysteriously the document said the couple were habitually resident in Italy (which they certainly were not) and even more mysteriously that they were farmers (a slightly creative interpretation of H’s ownership of a Tuscan farmhouse which had an olive grove).

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