Nicolaisen v Nicolaisen  EWFC 70
Published: 01/07/2022 09:00
Moor J. A case involving complex jurisdiction arguments, habitual residence, international marital agreements and underlying assets worth over £200m.
Husband (‘H’) was 70 years old and a Norwegian national. The Wife (‘W’) was 50 years old, born in Turkmenistan but a Norwegian citizen living in Essex, England. The parties met and married in Norway, where they remained until 2007, after which they moved to Malta, then Switzerland, and then Austria before, in 2019, purchasing property in England. Over the years, the parties entered three Marriage Contracts, bound by Norwegian law.
Between September 2019 and February 2021, W sought to issue four petitions in England. Not caught by Brussels IIA, the third petition was issued in May 2022. She was refused permission to file a fourth petition. By that time, H issued his own proceedings in Norway (ultimately dismissed for lack of jurisdiction) and Austria (stayed) and contested the petitions with which he was served in England on the grounds that W had not lived in this jurisdiction for a year immediately before the making of her application and thus was not habitually resident on the relevant date. Paragraphs  and – set out W’s itinerance in and around the relevant date.
The judge rejected W’s argument that she moved to England in July 2019, prior to her first petition. A plethora of evidence existed to prove habitual residence after the relevant date, but not at the relevant date. Per Pierberg (summary here) a petitioner on the basis of habitual residence has to show habitual residence both at the date of the petition and for at least a year beforehand.
There was no doubt that W was habitually resident at the time she filed her third petition, but had not been habitually resident for the 12 months immediately preceding the application. The court required ‘concrete evidence’ to support W’s case but ‘there is no such evidence whatsoever’. The judge found it ‘very telling’ that W had returned to Austria for eight days following the date on which she was required to be habitually resident in this country ; that her son was still being educated in Austria; she had not told anyone that she had moved to England; and ‘the precious cats remained in Vienna’ ; ‘there was not, by the relevant date, a planned, purposeful and permanent relocation, sufficient to establish jurisdiction’ . The second and third petitions were therefore dismissed.
Although not necessary, the judge explained what he would have decided had he concluded that W was habitually resident on the relevant date and in the event he had to determine H’s application for a discretionary stay. He held that notwithstanding the Norwegian Marriage Contracts, his company being based in Norway and him being Norwegian, H had not shown to a sufficient standard that Norway was the appropriate forum. That H was unable when questioned to state clearly in which jurisdiction he planned to continue proceedings, should he succeed, was determinative that he could not satisfy the appropriate test.