As I mentioned in my post about habitual residence, this blog receives a number of enquiries from people living outside England, enquiring whether it is possible to divorce in England. In that post, I explained that in order to do so, an applicant needs to establish jurisdiction.
One way to establish jurisdiction is via a form of residence in this country, but a major problem is the time frame involved. This is six months if the applicant is domiciled in this country, or twelve months if not.
Many clients are in no immediate position to assert that they have resided in this country for any recent period of time at all.
But there are two other potential avenues, assuming there ever was a connection with England, which allows you to proceed straight away and that is by asserting domicile, in one of two ways.
How to assert domicile
The first method, for European divorces that involve an applicant from an EU signatory country, is under Article 3(1) of Brussels II revised. The drawback is that both parties must be domiciled in this country. If that can be established, no prior period of residence is required.
The second, also outlined under Article 3(1) of Brussels II revised, is a “catch all” or safety net, for an applicant resident outside those EU countries. This method permits a petition to proceed “if 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, the English court has jurisdiction.”
This means that in those non-EU countries, if either one of the parties is domiciled in England and Wales, it is sufficient to found jurisdiction in accordance with Section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973.
However it is not a free-for-all. There is also a second stage. Even if jurisdiction is established, then the judge must also consider whether the applicant’s connection with England and Wales is sufficient for the court to fully exercise its jurisdiction.
The case we are going to look at later in this post is a good example, because it will help readers to consider their own position and what might be required in terms of evidence, if they wish to go down this route.
But what does “domicile” mean?
Domicile differs from nationality, or residence. Domicile is the strongest connection a person can have to his or her country, and is acquired on birth. When born, a child’s domicile of origin is the domicile of his father if his parents are married, or his mother if they are not.
In Mark v Mark (2005) UKHL 42, Baroness Hale said:
“Domicile…is a concept of the common law.
“A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.”
“It governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father’s domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1976; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law.”
A child’s domicile of origin remains with him unless a domicile of choice is established. This arises “when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time”, as Lord Justice Buckley outlined in IRC v Bullock  1 WLR 1178.
Domicile of choice
So, in English law you are born with a domicile of origin determined by your parents. But you can change your domicile to a domicile of choice. Sometimes people do so intentionally, for example by advising Her Majesty’s Revenue and Customs that they are no longer domiciled in this country. Sometimes they do so by their actions. The taxman is wise to this. So there are a number of tests to determine if a change of domicile has really happened, before HMRC will give up on the tax.
So even though some parties may say that a domicile of origin has been changed one of choice, legally they may be found not to have done so.
The classic definition of domicile of choice is contained in the case Udny v Udny  1 FLR 921, which was decided in 1869. In that case, it was said:
“Domicile 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.
“To acquire a domicile of choice, a person must reside in a country with the fixed intention of settling there and making it his or her sole or principal home for an indefinite period. Residence simply means ‘physical presence in a country as an inhabitant of it’.
“Having acquired a domicile of choice, a person retains it until it is abandoned. Once abandoned, it is possible to acquire a new one. But if there is a hiatus, the domicile of origin revives.
“Abandonment only takes place when the person has left the country with no further intention of ever residing there again.”
If it can be established there is an intention to return to this country, for example, this may affect the decision. At Stowe Family Law we once had a case in which the parties had reserved burial plots in England for themselves, although they had moved overseas. When the wife wished to divorce it was a strong factor – if not the only one – to indicate that neither party had lost their domicile of origin.
Domicile and M v M
In the case of M v M  EWHC 982, domicile of choice was considered in some detail. In this case, a wife issued a petition asserting jurisdiction because of her English domicile only. But her husband objected and the two stage process was undertaken by the court. Interestingly it was not the wife who had to prove her domicile, but her husband.
Mrs Justice Baron observed:
“The burden of proving a change of domicile lies on the party who asserts it. The standard of proof is the balance of probabilities. And cogent and clear evidence is required to show that the balance of probabilities has, ‘been tipped’ whether the issue is the acquisition or abandonment of a domicile of choice.”
Although the husband did not dispute that her original domicile of origin was English because her father was English, he argued that the wife had lost her domicile of origin and acquired a Danish domicile of choice.
But had she? This ultimately depends on the facts of each case which have to be considered in meticulous detail.
The family had spent four years in Denmark, which is not a signatory to the EU Council regulation. They had assets there (and none in England) and their children were of Danish nationality. Despite this, the court considered that the wife did not have the intention to remain in Demark indefinitely, and so held that that Denmark was not her domicile of choice.
The judge then went on to consider whether the court should nevertheless exercise its jurisdiction, applying the second stage of the test. Again, she pointed out that “the burden of proving that the balance of fairness requires a stay rests with the husband in this case for it is his application. It is not for him simply to show that England is not the natural or appropriate forum for the trial, but he must establish that there is another available forum which is clearly or distinctly more appropriate than the English forum.”
Mrs Justice Baron then followed Lord Goff of Chieveley in the House of Lords case of De Dampierre v De Dampierre in 1988 when he stated
“It is, desirable to consider the meaning of the expression “the balance of fairness” No doubt there are circumstances when it can plainly be perceived that it is more fair that proceedings should proceed in foreign jurisdiction than in this country. But experience has shown that there are difficulties. First, there are factors which cannot be evenly weighed. For one class of factors may be simply relevant as connecting the dispute with a particular forum whereas another class of factors (which may embrace the former) may point to injustice arising if the dispute is remitted to that forum. It is necessary, therefore, so to structure the inquiry as to differentiate between these two classes of factor, and to decide how each should be approached in relation to the other. Second, a factor may be such that its advantage to one party may be counterbalanced by an equal disadvantage to the other and a decision has to be made how such factors should be taken into account in considering “the balance of fairness” between the parties.”
Mrs Justice Baron, on the balance of fairness test, permitted the applicant wife to proceed in England. The judge stated: “When this case commenced and I read the written material, I thought that Denmark was a distinctly possible venue, but, as the case unfolded and the oral evidence emerged, it became abundantly clear the balance of fairness including convenience between these parties made this jurisdiction the more potent destination”.
So, if you are overseas and feeling despondent, what about asserting yours or your spouse’s English domicile, and letting your spouse argue the balance of fairness test against you… in England?
Professor Rebecca Bailey Harris has today given the firm a talk entitled “The New EU Maintenance Regulation” ( Council Regulation (EC)no4/2009) which came into force on 18th June 2011 and which deals with jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
In so far as it relates to jurisdiction by virtue of the sole domicile of one party, as referred to above, there may be a problem obtaining a financial settlement if it also includes a maintenance element pursuant to the brand new Article 3 (d) (and the reference to nationality should be read as domicile for England) but as it is a new provision, there is no case law on the subject. The safer option might be to apply for a capital only type settlement with no element of maintenance contained within it.
This is a highly specialist area. I am alerting readers to it, but always, please, take legal advice.