A case was reported last week which provides a useful summary of how the court will deal with competing jurisdictions – for example, between England and a non EU country. Quick spoiler alert: after considering all the options the Judge, Mr Justice Cobb, decided that England was the most appropriate forum but it is worth considering why his Lordship came to this conclusion. It is also a timely reminder as we wait for Article 50 to be triggered by the Prime Minister, of what future jurisdiction disputes could look like out of the EU arena and the Brussels treaties.
This case, J v U; U v J (No.2) (Domicile), concerned a wife born in the Republic of Ireland and a husband born in India. The wife issued a divorce petition in England in July 2015 saying that the parties were habitually resident in England and Wales at that time and also that she was domiciled there. The husband subsequently issued a petition in Sarajevo, Bosnia, in September 2015 where the whole family were then living but the wife subsequently moved to live in Serbia, leaving the husband and the children living in Bosnia. There were also ongoing proceedings in Bosnia concerning the children as this was the jurisdiction in which they were residing.
Before this hearing came before Mr Justice Cobb, the wife had already abandoned her arguments concerning habitual residence. As explained above it seems obvious that neither party was resident in England and Wales. The issue therefore was whether either party was domiciled in England.
As we have explained in other articles on this blog, were the dispute between two competing EU jurisdictions different rules would apply to determine which country would deal with the divorce. However, in this case England and Bosnia (which is not a member of the EU) were the competing jurisdictions, so the issue for the English court to decide was whether there was a court in a different jurisdiction which was more appropriate to decide the issues. The Latin phrase for this is “forum non conveniens”, which translates as ‘forum not agreeing’. In essence, if the English court did not think that it was the appropriate forum to deal with the divorce because there was another more appropriate forum it would cease involvement.
In this case a further level of complexity was added through the fact that, with an Indian and an Irish national how could either party establish domicile in England? The judgment quotes the law on domicile as summarised in renowned legal textbook, Dicey, Morris & Collins on The Conflict of Laws, and it is worth running through some of the main points:-
- No person can be without a domicile nor can you have more than one domicile at a time.
- Your domicile is generally considered to be the country in which you have your permanent home (though the idea of permanency of home is in itself a topic for factual debate in many cases).
- Everybody at birth has a domicile of origin. This can be changed to a different country as a domicile of choice.
- The amount of time you spend in a different country is not by itself important in establishing whether a domicile has been changed.
- You acquire a domicile of choice both through residing there and an intention of permanent or indefinite residence
The 12 point summary of domicile and how it can be changed alone makes the case report worth reading.
In this case the husband had been born in India to Indian parents. He moved to England with his family when he was about 13 years old and his father became a British citizen. During his adult life, he lived in England but then went to work in Luxembourg for a period of time and also in Brussels. He spent time during the early stages of his relationship with the woman who was to become his wife in Albania where she been posted at the time. He also had a farmhouse in Tuscany which he described as his spiritual home. The wife had dual British and Irish nationality, having been born in England to Irish parents. Her family moved back to Ireland while she was a baby and she stayed there until graduation. She then moved to England to undertake a Master’s degree, spending 18 months here, the longest continuous period of time she has ever lived in this country. Later she spent time working in Brussels and Albania.
When the parties married, they signed a prenuptial agreement. It was prepared by a dual-qualified Italian and English lawyer and referred to both the rules of English law and the Italian civil code as the relevant law. Mysteriously it said they were habitually resident in Italy (which they certainly were not) and even more mysteriously that they were farmers (a slightly creative interpretation of the husband’s ownership of the Tuscan farmhouse which had an olive grove).
The judge referred to this prenuptial agreement as an illustration of both parties “casual regard” for the concept of their national status – i.e. domicile or residence.
Fast-forward to 2015 and the marriage had broken down. The parties had attended counselling in London and the wife issued a petition in London which she served on her husband who was on holiday in Italy at the time. At this time the wife was working in Sarajevo where two months after the wife issued her petition in London the husband issued his own divorce proceedings.
In the subsequent jurisdiction dispute, the husband pointed towards the relative short periods of time the wife had lived in England, noting that they had been married in Italy, that she 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. The wife, by way of counter-argument, said that she had paid national insurance since 2002, that they returned to London for any major medical treatment, had even come 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.
I have not listed all the considerations exhaustively but it is interesting to note how some of the more mundane details of our lives can be considered when looking at the issue of domicile. The parties’ multi-national background and history provided fertile ground for factual arguments on both sides.
Although the wife in her evidence spoke with little warmth about England (no, I don’t mean the weather), and had in fact never holidayed in England (no doubt because of the weather!) the Judge in the end found that London had become her “centre of gravity” and that despite all her travels abroad it was the place of her permanent home.
By contrast, the husband was found by the Judge to be very prone to generalisations and he said that that some of his evidence was obviously inaccurate when examined. In addition, he had been backward in his disclosure leading up to the hearing (a warning to everybody who is considering not providing full disclosure) and had deliberately deleted files from the family computer. Nevertheless he found that the husband’s connections with England were no longer permanent and that he no longer viewed it as his home. He was more likely to spend the rest of his days in Italy or in Bosnia.
Forum non conveniens
Having found that the wife was domiciled in England, the court then had to decide whether England was the appropriate forum. If it was not then under paragraph 9(1)(2) of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 (DMPA) the court has the power to stay proceedings if there is another court which is obviously more appropriate than England to deal with the matter.
In this case the Court found that England had jurisdiction due to the wife’s domicile. The next stage of the test was to determine whether there was another more suitable jurisdiction. The husband therefore needed to put forward arguments as to why the divorce would be more suitably dealt with in the interests of all parties in Bosnia. However despite the fact that the children had never lived in England and were residing in Bosnia and both parties were litigating over their children in the Sarajevo courts, the Court took into account the fact that the wife was no longer living there; that there were no assets in Bosnia; that the Bosnian court had only limited powers to make orders against assets located outside Bosnia; that litigation had already been ongoing for 12 months in England; that London was their main “common reference point”; and that neither party spoke Bosnian fluently as reasons for determining that England was the most appropriate forum.
When I read judgements, I often like to flick straight to the end to find out the result and when I read this one, my initial reaction was one of “no surprise there, the English court again holding onto jurisdiction”. But the reasons given provide a very thoughtful and balanced assessment of all the different potentially influencing factors.
Read the full report here.
Photo of Bosnia by Andrić Branislav via Wikipedia under a Creative Commons licence