Divorce: habitual residence

On the true construction of indents 5 and 6 of art 3 of Council Regulation (EC) No 2201/2003, jurisdiction to apply for a divorce in England and Wales would only be established where the petitioner had been habitually residence (not simply resident) in the jurisdiction for at least six months or a year beforehand. The Family Court, in so ruling, applied Munro v Munro [2008] All ER (D) 316 (Feb) and disagreed with the interpretation of art 3, indents 5 and 6, in Marinos v Marinos [2008] 2 FCR 47. The court held that, on the law and the facts, the wife, a German national who currently resided in the UK, had not established jurisdiction in England and Wales as of 12 January 2018 (the date of the petition). Accordingly, the petition was dismissed.

Background

The husband was a wealthy man, aged 73. He was born in Germany and currently resided at the former matrimonial home in Switzerland. The wife, aged 69, was also born in Germany, but currently resided in London. 

The couple had one child. In late 2016, the marriage got into serious difficulties. The husband admitted to an affair. The wife moved to England, according to her, on 12 July 2017. The husband contended that it had been on 15 August.

On 12 January 2018, the wife applied in England and Wales for divorce. In her petition, she claimed to be domiciled and habitually resident in England and Wales, having resided there for at least six months immediately prior to the presentation of the petition. The petition was based on s 1(2)(b) of the Matrimonial Causes Act 1973 (MCA 1973), namely that the husband had behaved in such a way that she could not reasonably be expected to live with him. 

On 12 February, the husband issued a divorce petition in Germany. The jurisdiction pleaded was that both spouses were German citizens. The ground for divorce was that the marriage had broken down, the spouses having lived apart for more than one year. 

A preliminary issue arose concerning jurisdiction. 

Petition dismissed.

Issues and decisions

Whether there was jurisdiction for the wife to apply in England and Wales for divorce on 12 January 2018.

The only two possible grounds for jurisdiction in the present case were indents 5 and 6 of art 3 of Council Regulation (EC) No 2201/2003 (the Regulation). 

Indent 5 provided that ‘the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made.’

Indent 6 provided that ‘the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and … in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there’.

The question was, essentially, whether, on the true interpretation of indents 5 and 6, to establish jurisdiction to present a petition in England and Wales, a person had to show ‘habitual residence’ for at least six months or a year beforehand, not just ‘residence’.

The wife submitted that she had established a domicile of choice in England and Wales, where she had been habitually resident on 12 January 2018, and that, in accordance with Marinos v Marinos[2008] 2 FCR 47, she had been resident in England for at least six months before then and was domiciled in England (indent 6). In the alternative, she contended that she had been habitually resident in England on 12 January 2018, where she had been resident for at least 12 months before then (indent 5). In other words, her case was that both indents did not require habitual residence throughout the periods running up to 12 January 2018, but instead required residence in England. 

The husband submitted that the wife retained her domicile of origin in Germany and had not moved to England until 15 August 2017. Contrary to Marinos, he submitted that both indents of art 3 of the Regulation required habitual residence throughout the respective periods of six months and one year leading up to the date of the petition which, he contended, the wife had not achieved. 

The court considered the conflict between Marinos, in which Munby J held that jurisdiction was established provided the applicant was habitually resident at the date of the petition, and had been resident in England for either 12 months (indent 5) or 6 months if domiciled in England (indent 6); and Munro v Munro[2008] All ER (D) 316 (Feb), in which Bennett J had reached the opposite conclusion, relying on the dominant role given to habitual residence in art 3 of the Regulation, as stressed in the explanatory note (the Borras report).

Counsel for the husband sought to rely on the Spanish, French, Italian, Dutch and Portuguese versions of the Borras Report, arguing that they all referred to ‘habitual residence’, not just ‘residence’.

On the true interpretation of art 3, indents 5 and 6, to establish jurisdiction to present a petition in England and Wales, a person had to show habitual residence for at least six months or a year beforehand (see [54] of the judgment).

A literal interpretation of art 3 of the Regulation  would make a nonsense of the concept of habitual residence. The exact wording suggested that a person had to be habitually resident and that that had to be proved  solely by mere residence for a period of 6 or 12 months. That could not be right (see [53] of the judgment). 

The views of Bennett J and those of the authors of Dicey and Rayden were favoured (see [62] of the judgment).

Habitual residence was defined as the place where the person had established, on a fixed basis, his or her permanent or habitual centre of interests. A person could have only one habitual residence. All relevant facts would be taken into account in determining that. There was no specific time-frame for having established habitual residence. If there was a planned, purposeful and permanent relocation to another country, habitual residence could be acquired contemporaneously (or virtually contemporaneously) with the loss of a previous habitual residence (see [43] of the judgment). 

The test was qualitative not or quantitative (see [45] of the judgment).

There was a difference between residence and habitual residence. Unlike with habitual residence, a person could be resident in two countries at the same time. Residence had to be something more than just a place where you or your spouse own a property. It had to be somewhere where you reside as opposed to where you visited (see [46], [47] of the judgment).

In the present case, the burden of proof to establish that the present court had jurisdiction lay with the wife. The standard of proof was on the balance of probabilities (see [35] of the judgment).

On the law and the facts, the wife had not established jurisdiction in England and Wales as of 12 January 2018 and her petition had to be dismissed (see [88] of the judgment). 

The wife had been habitually resident in England and Wales on 12 January 2018 as England had clearly been the centre of her interests on that date. However, it was it was clear that she had not been habitually resident in England on 12 January 2017. On any view, she had been habitually resident in Switzerland on that date, as the parties had not even separated at that point. It followed that, she could not establish jurisdiction on the basis of habitual residence in England for a year at the date of her petition. It was equally clear that she could not establish habitual residence in England on 12 July 2017. The wife had remained habitually resident in Switzerland until 15 August 2017, on which day she had became habitually resident in England (see [76]-[79] of the judgment). 

Munro v Munro [2008] All ER (D) 316 (Feb) applied; Marinos v Marinos [2008] 2 FCR 47 not followed; V v V [2011] All ER (D) 210 (May) not followed; Rogers-Headicar v Headicar [2004] All ER (D) 142 (Dec) considered; Barlow Clowes International Ltd v Henwood [2008] All ER (D) 330 (May) considered; Z v Z [2010] Fam Law 25 considered; Kelly v Pyres [2018] All ER (D) 80 (Jun) considered.

Charles Howard QC and Deepak Nagpal (instructed by Hughes Fowler Carruthers) for the wife.

Lewis Marks QC, Stewart Leech QC and Elizabeth Clarke for the husband.

Carla Dougan-Bacchus - Barrister.