V v W [2024] EWFC 11123 May 2024

Published: 01/07/2024 11:38


Poole J. The issues for determination were:

  1. Does this court have jurisdiction to hear dissolution proceedings in relation to a French pacte civil de solidarite, ‘PACS’ (a form of civil partnership)?
  2. If so, is the forum conveniens for dissolution proceedings nevertheless in France?

The applicant applied for dissolution in England and Wales claiming that the Family Court had jurisdiction as he was domiciled in England and Wales. The respondent contended that the applicant is domiciled by choice in France, therefore, the Family Court in England and Wales does not have jurisdiction and even if it did, the court should decline to exercise that jurisdiction on grounds that the courts in France provide the most appropriate forum.

The applicant followed his application for dissolution with notice of an application for permission to apply for financial relief. The respondent disputed jurisdiction in her answer and the applicant obtained a Hemain injunction preventing the respondent pursuing her application in France until determination of the issue of jurisdiction.

When entering the PACS, the parties chose a ‘legal regime of undivided ownership of the assets we’ll acquire, jointly or separately, from the time of the PACS registration’. There is no option on the standard form for the parties to choose to treat their existing assets as jointly owned, therefore, the PACS the parties agreed to provides that each party shall take from the partnership what they brought into it. The respondent received a large inheritance prior to the parties’ relationship and, if the PACS were dissolved in France, the applicant would have no entitlement to any share of assets that the respondent owned prior to the registration of the PACS. If the Court in England and Wales assumed jurisdiction, the applicant would be able to claim a share.

It was accepted that:

  1. The applicant’s domicile of origin was England and Wales;
  2. The applicant asserted jurisdiction only on the grounds of his domicile and did not contend that the respondent was domiciled in this jurisdiction;
  3. The applicant did not put forward an alternative case that if he has previously acquired a domicile of choice in France, he has subsequently abandoned it and reverted to his domicile of origin.

The burden of proof is on the respondent to establish that the applicant has abandoned his domicile of origin. The burden of proof is the civil standard but domicile of origin is ‘adherent’ and domicile of choice is not easily acquired. Poole J considered the relevant case law, including Arden LJ’s judgment in Barlow Clowes International Ltd v Henwood [2008] EWCA Civ 577, that:

‘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.’

Poole J considered that domicile is a ‘combination of residence and intention’. It was submitted on behalf of the applicant that he never formed an intention to reside in France indefinitely or permanently, or that there was insufficient evidence to establish such an intention.

Poole J then considered the following relevant facts:

  • the applicant had always had dual French and British nationality;
  • from the age of 21 he spent the great bulk of his time away from England and had emotionally and physically distanced himself from his parents who lived in England such that he had no property he would call ‘home’ in England;
  • from the age of 21 until he issued this application he did not own any real property in England. The applicant referred to the respondent’s London flat as home but the respondent owned that well before the parties met, had tenants in it initially, and then sold it to buy a smaller property which appeared to be a sole decision by her. Even at the time of the hearing, the family did not have a property in England where their child had a bedroom as there was an informal lodger in the London flat;
  • there were a number of trips by the applicant to England, although they diminished in number and duration in the last few years. A lot were for business and some for the purpose of transit on to the USA;
  • the applicant had been a tax resident in France since 2009;
  • the applicant was eligible to vote in France;
  • the applicant had cohabited with the respondent in France since 2007;
  • the respondent made her own choice to move to where the applicant lived in France, buy an apartment and then a chalet there and to start a family in France. Poole J considered that it was relevant evidence of the applicant’s intentions that his life partner, the respondent, had no intention of leaving France;
  • their child had been schooled in France since 2016, although schools elsewhere in Europe (including London) had recently been considered for secondary education;
  • their child had been tragically diagnosed with a form of cancer requiring chemotherapy, and she indicated that she wished to remain in France even once well enough to start school elsewhere;
  • there was evidence that the applicant expressed a wish for his ashes to be scattered at a certain location in the town in France where the family lived.

Poole J concluded that by the end of 2016 the applicant had formed an intention indefinitely and permanently to reside in France.

Given the conclusion on domicile, the issue of forum did not arise, but Poole J gave judgment on the point as submissions had been made. Poole J stated that even if he had found that the applicant was not domiciled in France, the applicant is resident there, as is the respondent and their daughter, the family home is there, they pay taxes there and entered into the PACS there. The applicant’s most significant challenge to forum was that, in France, the PACS will be terminated with no consideration of financial relief. It was accepted that there would therefore be no division of assets due upon dissolution of the PACS under French law.

The applicant submitted that given there would be no exercise of any meaningful function by the French legal system, it cannot or should not be found that the French ‘forum’ is more appropriate. The respondent submitted that the parties chose to enter the PACS knowing its legal consequences; the fact that the legal system of England and Wales would be more advantageous cannot dictate the appropriate forum.

Poole J concluded that, as there has been no suggestion of any misunderstanding, mistake or misrepresentation leading to the registration of the PACS, the fact that the French Civil Code would not afford the applicant any financial relief does not lead to the conclusion that substantial justice would not be done in the appropriate forum overseas.

The respondent had made a substantial open offer which she stated she would leave open for acceptance even if the court found it did not have, or should not exercise, jurisdiction. Poole J was not persuaded that he should regard any offer as mitigating the lack of legal financial remedy in France.

On that basis, Poole J concluded that, even if the Family Court in England and Wales had jurisdiction to entertain the application, he would have stayed the proceedings on the basis that the more convenient and appropriate forum was in the jurisdiction of France.

©2023 Class Legal classlegal.com
Class Legal


Share this

    Most read