Strand, London, WC2A 2LL
B e f o r e :
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J v U; U v J (No.2) (Domicile)
Timothy Scott QC & William Tyzack (instructed by Stewarts Law LLP) for J, the Respondent Husband
Hearing dates: 20, 22 and 23 February 2017
Crown Copyright ©
The Honourable Mr. Justice Cobb :
i) That the Petitioner and Respondent are habitually resident in England and Wales;
ii) That the Petitioner is domiciled in England (the requirement being that "either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun": section 5(2) Domicile and Matrimonial Proceedings Act 1973: 'DMPA 1973').
She further asserts that England would be the forum conveniens for the determination of the divorce and ancillary matters.
i) Whether the Petitioner, whose domicile of origin is Ireland, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
ii) Whether the Respondent, whose domicile of origin is India, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
iii) If either party has domicile here, whether it has been demonstrated that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action (forum non conveniens).
In assisting me to reach a decision I have read the statements of evidence of the parties, heard their oral evidence, considered and analysed a number of documents submitted by each, and received persuasive and able submissions – both written and oral – from counsel.
The law on domicile
i) No person can be without a domicile (Dicey Rule 5); no person can at the same time and for the same purpose have more than one domicile (Dicey Rule 6);
ii) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home (Dicey 6R-001);
iii) Every person receives at birth a domicile of origin (Dicey & Morris Rule 9); this remains "of great importance" (Dicey 6-026), and is said to be "more tenacious" (6-031) than other forms of domicile; "it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice" (6-031);
iv) Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise (Dicey & Morris 6R-033); residence requires something more than casually passing through a country; it connotes becoming an "inhabitant" of the country (6-034);
v) Residence for a short period of time, even a few days, may be sufficient to establish domicile of choice (6-036); the length of residence is not important in itself;
vi) An intention to reside permanently, or for an unlimited time, in the given country must exist (6-039), the animus manendi; naturalisation is an indicator of intent (6-041). In Udny v Udny (1869) LR 1 Sc & D 441, it was said (Lord Westbury) that:"Domicil 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. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established." (emphasis by underlining added)In Barlow Clowes International Limited v Henwood  EWCA Civ 577 at , Arden LJ observed:"Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days". (emphasis by underlining added)
vii) In considering a person's domicile, the court is expected to consider carefully the available evidence; there are many factors which may indicate an intention, indeed, "there is no act, no circumstance in a man's life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be of more weight with regards to determining this question than an act which was of more importance to a man in his lifetime." (Drevon v Drevon (1864) 34 L.J. Ch 129 at 133 (Dicey 6-048); some facts which have great significance in one case may be of little consequence in another;
viii) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise (Dicey Rule 13);
ix) Domicile of choice is lost by ceasing to reside in a particular place and ceasing to intend to reside there permanently or indefinitely; where a domicile of choice is abandoned, either a new domicile of choice is acquired, or the domicile of origin revives (Dicey 6R-074); where a person abandons a domicile of choice, and does not acquire another, the domicile of origin reverts;
x) A domicile of dependency arises for a person who is legally dependent on another; that person takes on the domicile of the person on whom he is dependent (6R-078); a person under the age of 16 is legally dependent and cannot acquire an independent domicile; this issue potentially arises on the facts of this case given that the Respondent's father became a naturalised British Citizen while the Respondent was 15 years old; the question arises as to whether the fact of the naturalisation (in the context of the whole) was sufficient to indicate that the Respondent's father had acquired a domicile of choice in 1960 in England; naturalisation or citizenship is not decisive (see Barlow Clowes at );
xi) The burden of proving a change of domicile lies on those who assert it (Winans v Att-Gen  AC 287); as Arden LJ observed in Barlow Clowes (quoting from Lord Macnaghten in Winans) at /: "…the courts should not too readily find that a person has lost his domicile of origin because a change of domicile affects a person's status. At 294, Lord Macnaghten quoted with approval observations of Lord Cranworth and Lord Wensleydale in Whicker v Hume (1858) 10 HLC 124 to the effect that "in these days, when the tendency of the educated and leisured classes is to become cosmopolitan - if I may use the word - you must look very narrowly into the nature of the residence suggested as a domicil of choice before you deprive a private man of his native domicil." "It is difficult with respect to see why this reason does not equally apply to loss of a domicile of choice. In an increasingly cosmopolitan world, where migration is not confined to higher socio-economic groups and travel and communication is much easier, it is likely that many people will be as attached to a domicile of choice they have acquired as to a domicile of origin which they enjoyed originally. The law should reflect that fact."In this case, the burden is on the Petitioner to demonstrate that she and/or the Respondent have lost their domicile of origin; the standard of proof is the ordinary civil standard, but – per Scarman J (as he then was) in In the Estate of Fuld (No.3)  P. 675, 685-686:"two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists; and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."Cogent and clear evidence is needed to show that the balance of probabilities has been tipped, and this is true whether the issue is the acquisition or loss of a domicile of choice (see also Irvin v Irvin  1 F.L.R. 178;  Fam. Law 15).
xii) The statements of the person claiming or disputing a change of domicile must be treated with caution, unless corroborated by action consistent with the declaration. The person whose domicile is in question may himself testify as to his intention, but the court will view the evidence of an interested party with suspicion. The weight of such evidence will vary from case to case (Dicey 6-051).
The essential background facts
"[The Respondent] and [the Petitioner] wish to declare that the matrimonial regime which will govern their patrimonial regime is the separation of goods according to the Common Law rules of English Law and according to the rules on separation of goods set out in art.215 of the Italian Civil Code.
[The Respondent] and [the Petitioner] wish further to declare that they are habitually resident and domiciled in Italy… and that the law governing their prenuptial agreement is Italian law, insofar as it is compatible with the lex loci where their immovable assets are located.
[The Respondent] and [the Petitioner] further wish to declare that they have received legal advice independent of each other concerning the laws relating to the powers of the court of England and Wales and in Italy where they are habitually resident and domiciled upon judicial separation, divorce and nullity and in relation to the purpose, provisions and effect of this Agreement…
The Patrimonial Regime of the Parties
The Patrimonial regime of [the Respondent] and [the Petitioner] during their marriage will be the separation of goods according to the rules set out in art.215 of the Italian Civil Code, the law of the parties habitual residence and domicile which is the common law rules in England and Wales (sic.)
[The Respondent] and [The Petitioner] each agree that the interpretation, implementation, and enforcement of this Agreement shall be determined exclusively in accordance with the principles of Italian Civil Law and the competent court will be the court of [the Petitioner's] prenuptial domicile in Italy."
i) Neither party was, by principal occupation, a "farmer" at the time of the marriage (the most generous interpretation of this curious description of their principal occupation is that there was an olive grove at the Italian farmhouse);
ii) Neither party now claims (or has ever claimed, I believe) to have been habitually resident in Italy at the time of the marriage; there is no evidence that they were;
iii) Neither party now claims (or has ever claimed, I believe) to have been domiciled in Italy at the time of the marriage; there is no evidence that they were;
iv) The Petitioner claims that she did not receive independent legal advice before signing the document;
v) There is no evidence that the pre-nuptial agreement was witnessed, for which there was specific provision, if not requirement.
That the document was drawn up and signed by these parties demonstrates a rather casual regard displayed by both of them to the concept of their national status, and the requirements of formal proved documents; this has inevitably affected my analysis of their other evidence on the central issues, encouraging me to proceed with caution.
"Re: [The Respondent]
We can confirm that [the Fulham property: address given] has been the joint permanent residence of [the Petitioner] prior to November 2005. [The Respondent] is married to [the Petitioner]."
The Respondent maintained that he had never seen the letter before. Mr. Scott QC observed that the language of the letter was strange, and the purpose of the letter was unclear. Read on its own, I rather agree. The author of the letter has sent a recent (December 2016) explanatory note, by e-mail, to the Petitioner in which he said:
"I anticipate that this letter was written at the telephone request of [the Respondent] me having met you and having had confirmation in the meeting from you both that you were resident at that address for the purpose of the letter … I think it is unlikely that you would have sent me separate emails concerning this issue" (emphasis by underlining added).
The explanation sheds little light on the content of the letter, and leaves further room for doubt about how or why this letter was generated. Having heard argument on the point, it seemed to me – and I so find – that the letter was most likely explained by the fact that at about the same time, the European Commission had written to the Petitioner confirming, in response to her specific request, that her "lieu d'origine" had been rectified (with effect from 16 November 2005) to show the address of the Fulham property. I am also satisfied on balance that it was the Respondent who was the client of the solicitors' firm, and he must therefore have had some knowledge of, or hand in, requesting the letter in the first place.
i) British citizenship, and British passports;
ii) 'Persons of Indian Origin' cards (procured at the instance of the Respondent – for the entire family);
iii) The ability to converse in several languages.
Neither child has an Irish passport, although they are apparently entitled to them.
Findings of fact
Issues of fact relevant to the Petitioner's domicile
Issues of fact relevant to the Respondent's domicile
Discussion and conclusion - domicile
i) He has been less than forthcoming, I would say reticent, about disclosure in the run-up to this final hearing, only relinquishing documents under specific challenge and court order; I was not entirely satisfied that I (or the Petitioner's legal team) had seen all that there was to see about the leasing of the Fulham property, for example;
ii) In December 2016, I find that he deliberately removed, or caused to be removed, many of the Petitioner's files on the family computer. He initially denied that he had effected this (23 December 2016 correspondence reveals), but now accepts it. I do not find that he did so innocently; it was done in a quest to frustrate the pursuit of the Petitioner's claims. These files were restored (in the main) when this activity was discovered. It was not the accident he purported to claim. He used a friend to achieve his objective, and communicated with this friend using what later became the parties' older daughter's phone, which explains how the Petitioner became aware of his activities;
iii) As recently as 7 February 2017, shortly before this hearing and without notice to the Petitioner, he attempted to remove her Home Rights Notice on the Fulham property.
iv) It transpired in these proceedings that during the marriage in 2013, by a signed letter of wishes, the Respondent had indicated his intention to exclude the Petitioner from benefiting from his will: "it is my wish that [the Petitioner] be excluded from having any connection whatsoever, in any respect of the creation, gestation or any part of any operations, and roll out and establishment of any aspect of the estate whether direct or indirect." He refers to the hope that she will have the most "minimal of input" into the upbringing of the children in the event that he pre-deceases her.
Forum Non Conveniens
i) (a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
ii) (b) In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country (see (f), below).
iii) (c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established. Such indeed appears to be the law in the United States….
iv) There are cases where no particular forum can be described as the natural forum for the trial of the action. I can see no reason why the English court should not refuse to grant a stay in such a case, where jurisdiction has been founded as of right. It is significant that, in all the leading English cases where a stay has been granted, there has been another clearly more appropriate forum. In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case  A.C. 795, per Lord Salmon).
v) (d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case  A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Or adopting the language of Lord Keith of Kinkel, in The Abidin Daver  A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business.
vi) (e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay.
vii) (f) If, however, the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see The Abidin Daver  1 A.C. 398, 411, per Lord Diplock, a passage which now makes plain that, on this enquiry, the burden of proof shifts to the plaintiff.
i) The Petitioner no longer resides in Sarajevo;
ii) The Respondent's immigration status in Bosnia is "very precarious" now that the Petitioner has left;
iii) The main assets of the marriage are either in this jurisdiction (the Fulham property) or elsewhere in mainland Europe (the Italian farmhouse, the Brussels property, the Respondent's pension); there are no assets in Bosnia;
iv) The Bosnian court has limited jurisdiction to make orders in relation to matrimonial property outside its jurisdiction, and even then only with the consent of the parties;
v) The parties are familiar with the English court process. They have litigated here over the last 12 months, and have relationships with distinguished legal teams; the Respondent has of course been divorced in the English courts before;
vi) Both parties speak fluent English; neither speak Bosnian well;
vii) London has been their common and constant reference point during the marriage.
I develop (ii) and (iv) a little further in the paragraph which follows.
"[The Respondent's] situation in Bosnia is very precarious and he was informed that he could be simply deported – which would also mean that his daughters would be put into care. … My client and the children are being put in legal limbo…". (emphasis by underlining added).
Although the Respondent sought to play down the language of this letter, it has been very recently written, and its terms are stark.