It’s a truism that the world has shrunk in recent decades, thanks to inexpensive air travel and global communications systems. Not only are we much more likely these days to meet and marry people from other cultures, if we do we may also think nothing of moving to a third country to set up home, for work or just because we want to.
Life as a global citizen is contemporary and exciting but it can bring complications – principally legal ones. If you marry someone from another country and then decide to divorce, which law applies? The law in your country, the law in their country or the law of the country in which you are now living? It can be a confusing and complicated situation, a mishmash subject to international regulation such as Brussels II Revised, which sets out rules governing the application of family law when a case involves more than one country in the European Union.
The three key legal principles in multinational divorce are topics we have discussed elsewhere on this blog. There is jurisdiction, which essentially means the authority of the legal system in one particular country to handle a case, and then there is domicile – means the country in which a person resides on a long-term basis. Domicile can the same as a person’s nationality and the term implies a degree of permanence. And then there is habitual residence, the country in which you normally live at a particular time. This can be different to domicile and is a prime consideration in international child abduction, when an angry or alienated parent takes their child or children without permission from one country into another.
In recent case of Sekhri v Ray, we can clearly see these principles in action. It’s a relatively straightforward case but one which nevertheless clearly demonstrates the inherent complications of a multinational relationship.
The case concerned a British man with an Asian background and Indian woman who met and lived together for a period in this country. Later however, the couple married in India and moved to Singapore for work. They had a child but unfortunately the relationship came to an end shortly afterwards.
At that point the wife, despite the fact that she was Indian by nationality travelled back to England with the child and filed divorce proceedings here.
But the child was made a ward of court, obliging to the woman to travel back to Singapore and apply to relocate. The husband, meanwhile, filed his own divorce proceedings in India and claimed that the English courts did not have jurisdiction in the case because neither party was habitually resident or domiciled in England when the wife made her application
But the High Court took a different view, ruling that the couple’s domicile remained England at the time the wife launched her proceedings. Despite her nationality, the wife had established domicile in England before the marriage, the Court concluded.
At the Court of Appeal, Lord Justices Rimer, McFarlane and Vos noted:
“In her evidence to the court the wife described how, within a very short time of being in London, she regarded England as her permanent home.”
“Her case was that the move [to Singapore] was only intended to be, or at all events understood by her to be intended to be, for a finite period of no more than two, or, at the most, three years, after which he and she would return to England where she always intended to reside and pursue her career in the longer term.”
Meanwhile, the husband’s relocation had been of “insufficient quality to establish a fresh domicile of choice in Singapore”.
Therefore the English courts had jurisdiction in the divorce. The husband appeal against the ruling was dismissed. The original judge had considered a significant quantity of evidence, an examination which included the husband’s own family background. This clearly established that his legal domicile was England.
Lord Justice McFarlane was also “totally unpersuaded that there is any error to be found” in the original judge’s conclusions regarding the wife’s domicile.
Domicile and habitual residence can be complex and are both much debated concepts but at heart they represent a recognition in law that people can and do retain a meaningful connection to countries in which they no longer live. And if they do, they should have the right to legislate within that country’s legal system if they wish.