Sir Jonathan Cohen. Jurisdiction dispute concerning (i) whether the courts of England and Wales have jurisdiction to entertain W’s divorce application; and (ii) whether, if there is jurisdiction, England and Wales is the forum conveniens.

Decision

W failed to establish or demonstrate the degree of permanence necessary to acquire a domicile of choice in England and Wales pursuant to s 5(2)(g) of the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973) and even if she had succeeded, it is likely the proceedings would have been stayed in favour of the European Country.

Background

On 7 December 2023, W’s divorce petition was sent to the online portal and issued on 13 December 2023. H commenced divorce proceedings in the European Country on 29 December 2023; at this point H had not been served with the English proceedings.

W’s domicile of origin was Russia; she was brought up in the Soviet Union and met H in 1998 when she was an interpreter.

H was born in England, where his parents were posted; H returned to the European Country when he was 1, moving between the European Country and England (for boarding school and university).

The parties lived in China, Russia and the European Country during their early married life. The parties purchased a large property in City X (in the European Country) around a decade into the marriage. The children were sent to school in England, at which point the parties rented a property near the school and W says this is when her domicile of choice was acquired. The parties went on to purchase a flat in England which was one-third of the size of the property owned in City X.

The law

The courts of England and Wales shall have jurisdiction in relation to divorce only if one of the subsections of s 5(2) Domicile and Matrimonial Proceedings Act 1973 applies.

W pursued her application on the basis of subsection (g) of s 5(2) DMPA 1973, asserting that at the time of her application in December 2023, per s 5(2)(g), either of the parties to the marriage was domiciled in England and Wales.

Cohen J refers to the following:

• Cyganik v Agulian [2006] EWCA Civ 129: it is established law that domicile of origin can only be replaced by clear, cogent and compelling evidence that the relevant person intended to settle permanently or indefinitely in the alleged domicile of choice.
• Arden LJ’s summary of the modern law relating to domicile at [8] in Barlow Clowes International Ltd & Ors v Peter Stephen William Henwood [2008] EWCA Civ 577. The interplay between [14] of Barlow Clowes (supra) and the phrase ‘permanently or indefinitely’ is considered.
• King LJ in Kelly v Pyres [2018] EWCA Civ 1369 at [69].
• Moor J in Divall v Divall [2014] 2 FLR 1104 at [37]–[38].

Cohen J states that that the acquisition of a domicile of choice should not be read as being dependent on whether or not it is where the person wishes to spend his last days. Such an interpretation would be inconsistent with the other authorities; however, it is clear that a temporary period of residence will not suffice. What is required is the intention to reside permanently or for an unlimited time in a country:

‘it must be a residence fixed not for a limited period or a particular purpose but be general and indefinite in its future contemplation. Thus, a period spent in a country for work or for the education of children or medical treatment is insufficient by itself to establish a domicile of choice.’

Domicile analysis

W failed to demonstrate the degree of permanence necessary to acquire a domicile of choice as of 7 December 2023; her presence in England was never other than for the school education of the parties’ sons.

The amount of time she spent in the European Country far exceeded the time spent in England. There would be a stronger argument that she acquired a domicile of choice in the European Country, rather than in England.

The factors that led Cohen J to his conclusion at [64] are as follows, inter alia:

• the relative size and nature of the accommodation which the family enjoyed in City X in the European Country as opposed to England;
• W brought her housekeeper, her mother and her father to live in the European Country;
• W had no relatives in England, and none of her birth relatives ever visited her in England, except her mother in 2014;
• the family pet was in the European Country;
• W had no car in England from the start of 2023;
• in the European Country the children had their own rooms, whereas in England they had to share a room;
• when W returned to England in 2023, she was not speaking to the one family member, their son, who was in England;
• the flat in England was never used in the holidays, it was only used in connection with the children’s schooling;
• there were no trips to other parts of England and Wales, apart from day visits, almost entirely to London;
• the parties reached an agreement in 2020 that from summer 2022, they would be living in the European Country;
• the absence of an application for pre-settled status until after W had filed her application for divorce;
• mutual declarations to the European Country tax authorities that from 2023, the parties were resident in the European Country.

Cohen J found various elements less persuasive, including: the language spoken at home, the depth of W’s connection to Russia, and the fact H’s business engaged in British exports with the majority of the staff speaking English.

NB. W’s revised position that each party had a different intention in respect of their permanent home and thus their domicile (i.e. W was committed to England and H to the European Country) was rejected, although ‘attractively put’.

Forum non conveniens

Cohen J did not need to address this argument; however, as there were detailed submissions, it was decided that his conclusions would be briefly set out.

Where there are concurrent proceedings in England and another jurisdiction in respect of the same marriage, s 5(6) of the DMPA 1973 (together with Schedule 1, paragraph 9 of the same Act) provide that the English proceedings may be stayed if the court thinks fit.

Cohen J refers to the helpful summary by HHJ Hess in SA v FA [2022] EWFC 115 at [20].

Applying the relevant principles to the present case, Cohen J held that there were very strong reasons why convenience and the balance of fairness would dictate that the European Country proceedings would take priority:

• It is where the parties had their main home and where a greater part of the parties’ marriage has taken place, compared with England.
• The scale of the assets in the European Country was significantly higher than those in England (the parties have a portfolio of property in the European Country, according to W’s own Form E, with a value of several times that of the English flat).
• W already had recourse to the jurisdiction of the court of the European Country (i.e. the European Country has been seized with the proceedings relating to the children/allegations of domestic abuse/interim maintenance).
• The parties’ business interests were worldwide and their connection with England limited.
• The connection of the parties and the children was closer with the European Country than to England.
• The matters set out at [64] of Cohen J’s decision (the list of factors referred to above) applied.

In the circumstances, Cohen J states he would have stayed the English proceedings, it being clear the connection of the parties was significantly closer to the European Country than England.