Newsnight interviews Mr Justice Cobb…*
Jeremy Paxman: [To camera] I have with me tonight High Court judge The Honourable Mr Justice Cobb, who has just decided that a wife who currently resides in Serbia and has not lived in England since 2002 can proceed with her divorce in this country. [Turns towards guest] Good evening, My Lord.
Mr Justice Cobb: Good evening.
JP: This is a very odd decision, isn’t it?
JC: It was a difficult case, with particularly unusual and complex facts, dealing with a complicated legal issue.
JP: Hmm. What was the issue?
JC: Well, the wife issued divorce proceedings in England in 2015, but the husband claimed that the English court did not have jurisdiction to hear the case.
JP: Surely a divorce is a divorce, no matter where it happens? Why could the country in which a divorce takes place be important?
JC: It could be of great importance in relation to any financial settlement. In particular, it is considered that the courts in this country are more generous to wives than the courts in many other countries.
JP: I see. Go on.
JC: Well, for the courts to have jurisdiction to deal with a divorce, one or both of the parties must have some connection with this country. Here, the wife claimed that the English court had jurisdiction to deal with the case because she was domiciled in England.
JP: For the benefit of our viewers, what does ‘domiciled’ mean?
JC: Where a person is domiciled is essentially the country that that person treats as their permanent home.
JP: Thank you. But this woman’s domicile of origin was Ireland, and she hasn’t lived in England for more than fifteen years. How can she be domiciled here?
JC: It’s a question of residence and intention. ‘Residence’ means more than just casually passing through a country. Here, the wife was resident here as a student between 1995 and 1997, and in a house in London with the husband for about a year in 2001-2002.
JP: So she only actually lived here for a total of about three years? How can that be enough to make her domiciled here?
JC: Well, as I said, it is also a question of her intention. In those fifteen years she has lived a peripatetic lifestyle, working in the diplomatic service. She has retained links with England, and has never considered any other country to be her home.
JP: What kind of links?
JC: She has maintained strong practical, financial and fiscal links with the UK throughout her multiple postings. For example, she has returned to London for important medical treatment and since 2002 she has paid National Insurance contributions, indicating that it was to England that she saw herself returning to retire. In the circumstances I found that from 2000 at the latest (though it was a developing picture from 1995), she had acquired a domicile of choice in England and Wales, which has not been lost notwithstanding her various postings abroad.
JP: So the divorce could proceed in England?
JC: Provided that the husband could not show forum non conveniens.
JP: Forum non conveniens? What is that?
JC: The English Court has power to order a stay of proceedings on the basis that England is an inappropriate forum (‘forum non conveniens’) if the respondent can show that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action, and it is not unjust that the Petitioner be deprived of the right to trial in England. Here, the parties last lived together in Bosnia, the husband is still there, and he claims that the Bosnian court would be a more appropriate court in which to hear the case.
JP: You obviously decided that Bosnia was not a more appropriate forum. Why was that?
JC: I decided that for a number of reasons, including that the wife no longer lives in Bosnia, that the husband’s immigration status in Bosnia is very precarious, and that both parties speak fluent English and neither speak Bosnian well. Further, the Bosnian court can only deal with property abroad if both parties agree, and here the husband owns a property in London. The wife has indicated that she would not agree to the Bosnian court dealing with foreign property.
JP: So the divorce and financial proceedings will go ahead in the English court?
JP: Thank you, My Lord. I am obliged for that explanation.
(*Well, not really. By way of explanation I thought I would write this post on the basis that, as suggested by Sir James Munby, the judge deciding the case is asked to appear on Newsnight to explain his decision. It will be noted that Mr Justice Cobb says nothing more than is in his judgment anyway, as would surely be the case. That judgment, J v U; U v J (No.2) (Domicile), can be found here. Oh, and for the pedants out there, I know that Jeremy Paxman no longer presents Newsnight.)