Delaying Departure? Domicile in Divorce Cases

It has often been said that ‘nothing is certain in life but death and taxes’. The determination of a person’s country of domicile is frequently relevant to both of these issues, just as it is related to whether a court has jurisdiction to hear a petition for divorce. In Ramana v Kist Ramana [2025] EWCA Civ 1022, [2025] 4 WLR 120 the Court of Appeal was concerned with the question of how a domicile of choice may be lost. To determine that question, the court considered a long line of case law frequently involving both death and taxes, in order to decide the correctness of a decision regarding the jurisdiction for a divorce.

In this article, the authors, who were counsel in the case, explore the arguments made at the hearing, the court’s decision and reasoning, and the likely implications of its outcome.

A very brief introduction to domicile

Let us start at the beginning. Citizens the world over have a domicile of origin. It is acquired at birth. It normally stems from one’s own parents’ domicile. For most people that will be the country that they are born in. But not always. For example, in Goulder v Goulder [1892] P 240, PDA, the respondent to the divorce petition had been born in France to English parents. The respondent’s father was a lacemaker from Nottingham, who worked in St Pierre near Calais in France and conducted his business in English. According to the evidence, the respondent’s parents resided in France for the purposes of their business but with the ultimate fixed intention of returning to England and resuming their native home. That was found to be their domicile of origin, which they had not lost. In that case, England was found to be the respondent’s domicile of origin too.

A domicile of origin can be changed to a new domicile of choice. That normally occurs when a person moves overseas and relinquishes one’s domicile of origin. A person must always have a domicile somewhere. The intention required to choose a new domicile must be cogent. It must be proved with clarity. If a person does acquire a new domicile of choice, and later abandons it, but it is not clear for which new jurisdiction, the domicile of origin revives.

The facts of Ramana v Kist Ramana

In Ramana, the appellant wife was born in Mauritius. It was her domicile of origin. She came to England in 2000 at the age of 21 to study at university. There she met the respondent, who was a British and Mauritian national. They married in England in 2003. They purchased a family home in Windsor. In 2005, she was granted indefinite leave to remain. In 2011, they had their first child. In 2017, they had a second child. Both were born in England. In 2018, the wife obtained British citizenship.

In September 2019, the family moved to Mauritius. The reason for the move was disputed. The wife’s case was that they went to stay in Mauritius on their way to Singapore. They stayed in Mauritius with members of the wife’s family to save money. The husband desired to live in Singapore where he saw opportunities to improve their financial situation. When they left England they had been struggling financially. The wife’s case was that their stay in Mauritius was intended to be a ‘stop gap’ pending the establishment of larger business interests in the Far East. The ultimate plan, she said, was to return to England one day (at [11]). Then, in March 2020, the COVID-19 pandemic hit, and the parties had no option but to remain in Mauritius until travel restrictions eased. By the end of 2020, their marriage had failed. They lived separately but could not leave the Islands. In October 2022, when restrictions lifted, the wife travelled back to England. Within 3 days she had petitioned for divorce. She contended that she was domiciled in England at the date of her petition. She submitted that she considered England to be her domicile of choice, having lived here almost all of her adult life. The husband submitted to the trial judge that the family had never intended to return, and that if the wife had acquired a domicile of choice in England, it was lost when she returned to Mauritius in 2019.

The trial judge, Williams J, had a difficult task. The parties were both litigants in person below. His Lordship made two crucial determinations. The first was that he found that the wife had acquired in domicile of choice in England and Wales prior to her departure in 2019 (at [20] quoting [38] from the hearing below). This was on the basis of between 13 and 16 years of family life in England with a settled intention to remain there permanently or indefinitely.

The second – and with hindsight, unfortunate – determination, was that the wife had not revived her domicile of choice in the very brief period in 2022 upon her return, prior to her issuing her divorce petition. As domicile was the only jurisdictional ground for divorce on which the wife relied, his Lordship dismissed her petition for want of jurisdiction.

The wife appealed. Her primary ground of appeal was that the judge, having found that the wife had gained a domicile of choice in England and Wales prior to 2019, and having concluded that she had not regained that domicile of choice very quickly on her arrival back in 2022, had failed to consider the intermediate question of whether she had lost her domicile of choice after her move abroad, which on her case had been a temporary one. The wife contended that this was a critical step which had been overlooked. Further, in addressing this question, the wife argued that, on the case law, there needed to be a holistic or ‘global’ evaluation of the facts, which should have included not only her intentions upon her departure and whether she intended to return, but also her actions and conduct between the date of her return and the date of the final hearing, by which time she had again been living in England for approaching 2 years.

The husband contended that the wife’s appeal was a factual disagreement with the judge’s decision, dressed up as a legal issue.

The Court of Appeal’s decision

Moylan LJ, who gave the lead judgment, emphasises in the early part of his decision that although Williams J had correctly set out that the wife had the burden of satisfying the court that it had jurisdiction to entertain her petition, ‘the burden in respect of the issue of domicile was not solely hers’:

‘[19] … It was for the wife to establish that she had lost her domicile of origin and had acquired a domicile of choice in England and Wales prior to 2019 (when the family left England). If she did, the husband then had the burden of proof of establishing that she had lost this domicile of choice prior to 11 October 2022.’

Ultimately, and no doubt faced with a difficult exercise given that both parties were litigants in person below, Williams J fell into error because he failed to consider the intermediate question of whether the wife had abandoned her domicile of choice (having found as a fact that she had gained one); and further by failing to identify that the burden was on the husband to prove that she had lost it.

For completeness, although not directly in issue at this particular hearing, the husband had raised forum non conveniens arguments as he had cross petitioned in Mauritius. Because Williams J had dismissed the wife’s petition for want of jurisdiction, he had not needed to go on to consider that issue. Allowing the appeal, Moylan LJ (Lewison and Popplewell LJJ concurring) remitted the matter to the High Court for a redetermination of whether the wife had abandoned her domicile of choice, with the question of forum to follow if she was successful on the domicile point. The remainder of the judgment thereafter sets out a detailed analysis of the case law and principles underpinning that conclusion.

The challenge of applying this decision

Whilst the judgment contains a useful exposition of the case law, Moylan LJ carefully avoids establishing any general approach. At [40], he cites Scarman J’s comments in In the Estate of Fuld, Decd (No 3) [1968] P 675, PDA that:

‘This branch of the law is adorned by a great number of cases, not all of which is it easy to harmonise. The difficulty arises not from a lack of clarity in judicial thought but from the nature of the subject. Domicile cases require for their decision a detailed analysis and assessment of facts arising within that most subjective of all fields of legal inquiry – a man’s mind.’

Since that judgment was written in 1968, things have only become even more complex. Subsequent cases reflect the increasingly cosmopolitan nature of modern life, where individuals can perhaps more easily move from one jurisdiction to another. Moylan LJ is clear, and we respectfully agree, that, ‘it would, therefore, be unwise to suggest that the cases establish, or indeed to seek to craft, a clear rule or a prescribed or harmonised approach when dealing with the issue of contingencies in the context of determining whether a person has the required intention’.

This caution is justified. There is plainly no substitute for a detailed assessment of the facts of any given case. As financial remedy practitioners, we are used to giving advice where there may not be a clear rule that applies to their case or the issue to be determined. However, and despite Moylan LJ’s clear warning to the contrary, is it possible to identify any broadly applicable themes or lines of enquiry that might form a useful guide in cases that concern domicile?

Whilst the test’s scope is limited to the question of an individual’s intention, there is an almost unlimited amount of evidence from which this could potentially be inferred or imputed. We are required to consider the entirety of an individual’s life in all its detail. With typical erudition, Mummery LJ in Agulian v Cyganik [2006] EWCA Civ 129, describes the judicial task as considering, ‘what he had done with his life, at what life had done to him and at what were his inferred intentions’. This biographical exercise cannot be divided into stages, with one period of a person’s life taking automatic precedence over another. Nor can we extract a single act or decision as determinative, drawing a line at that point and failing to consider the matters that came afterwards. Many of the cases, including Agulian, concern a deceased individual and therefore benefit from the exercise of hindsight. However, this exercise becomes even more thorny when the court is required to consider the intentions of an individual who is still living.

As part of the analysis, there is also the issue of how to treat contingent intentions; a person may plan to act on the basis of some future event, forming or preserving an intention on that basis even if the event has not yet happened. This consideration is introduced by Moylan LJ through reference to Dicey, Morris and Collins on The Conflict of Laws (Sweet & Maxwell, 16th edn, 2022) and with emphasis on the following passage:

‘“If they have in mind the possibility of such a return [to the country of origin] should a particular contingency occur, the possibility will be ignored if the contingency is vague and indefinite, for example making a fortune or suffering some ill-defined deterioration in health; but if it is a clearly foreseen and reasonably anticipated contingency, for example the termination of employment, or the offer of an attractive post in the country of origin, succession to entailed property, a change in the relative levels of taxation as between two countries, or the death of ones spouse, it may prevent the acquisition of a domicile of choice.”’

We are therefore invited to consider whether or not an individual’s intention is based on what Moylan LJ identifies as either a ‘vague or indefinite occurrence’ or ‘a clearly foreseen and reasonably anticipated one’. In Ramana, the wife’s case was that the parties would return to England after they made their fortune abroad. In the event, they never even got to their intended destination.

These various matters present a real challenge. The court must consider the totality of the evidence, albeit subject to the normal principles of judicial decision making. Citing obiter comments in Ray v Sekhri [2014] EWCA Civ 119, Moylan LJ clarifies that there is no need to ‘slavishly list’ each and every factor but that a judge must look ‘at the contours of the case and highlight the prominent elements, that in his view, fall for consideration and which may be determinative of the outcome’. How then can we begin to break down these principles to understand what is useful or potentially determinative, without being overly prescriptive?

Features emerging from the case law

Happily, features do emerge from the case law to guide the busy family practitioner. The contours of the case often follow some predictable lines and a topography does emerge. For the purposes of this article, we next consider the specific question that was considered in the case at hand: whether a party has formed the relevant intention to abandon their domicile of choice. In other words, does the evidence suggest that an individual has the intention to continue residing there? For consistency, we shall also assume that the individual concerned is still living.

The first principle to consider is the most straightforward, however it cannot be understated. It follows from the above test and the case law that the mere decision to leave a jurisdiction does not show that a person lacks the intention to continue residing there. This bears repeating, where many will assume that a decision to move from one jurisdiction to another is evidence that they no longer want to live in the original jurisdiction. It recognises the enduring possibility that an individual may still intend to return to the original jurisdiction, even if they have physically moved elsewhere.

Where else can we look for evidence of an individual’s intention? The concept of a contingent intention encourages us to look at the individual’s motivations and priorities, or the basis of their decision to move. If the evidence suggests that an individual intends to return at some point, then they have not abandoned their domicile. However, the key issue is whether or not their intention to return is based on a vague or indefinite event taking place, or something that is clearly foreseen and reasonably anticipated. This is a conceptual distinction between an intention that is more, or less, contingent on some other event. How can we begin to go about analysing this?

Assistance comes from the case law. Buckley LJ in Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178 refers to a ‘not unreal’ possibility that an event might occur, in this case the reasonably anticipated fact an individual’s wife might predecease him. Other examples include if the individual reaches a particular age or if they inherit a particular title that they are entitled to. This is contrasted against a ‘doubtful contingency’ or an ‘event or condition of an indefinite kind,’ such as an individual only returning if they were to win the lottery.

We are therefore encouraged to start with an individual’s motivations before considering whether or not the basis of that motivation is realistic and reasonably proximate. Whilst this will not always be easy, it is certainly a more straightforward question to be explored with a client in conference or on a review of the evidence.

At the risk of becoming philosophical, what does it mean for a contingent event to be ‘doubtful’ or ‘indefinite?’ There will be cases where an individual’s intention is based on an event that they clearly foresee and reasonably anticipate, even if an objective observer would say that it is doubtful it would ever occur. For example, in the case of Winans v Attorney-General [1904] AC 287, the House of Lords considered the weight to be placed on the individual’s subjective belief that an event would one day occur. Their conclusion, noted by Moylan LJ at [62], was that the subjective belief carried weight even if the court found that the event was not likely to happen. What mattered was that the individual ‘thoroughly believed he would succeed’ and continued to act based on that expectation.

Application in practice

In an area of the law this fact-sensitive, as Moylan LJ has stated, it would be unwise to attempt to craft a harmonised approach arising from the various cases. However, it is hoped that this article gives some guidance to the busy practitioner who is instructed to prepare a witness statement, or advise or to argue a question about domicile. What is required is an analysis of the individual’s intention and motivations, and the basis of those intentions. Why is it that they have moved from one jurisdiction to another? Would they ever return to their former jurisdiction and, if so, when? What plans have they made and what is the basis of those plans in the short, middle and long term?

Critically, the burden of proof must be borne in mind. If the issue to be determined is whether a person has acquired a domicile of choice, then it is for that person to discharge the burden. However, as made clear in the present case, where the question is whether an individual has lost their domicile of choice, the burden is on the party asserting that it has been lost.

It should also be noted that the issue of domicile arises at the outset of proceedings, at the jurisdiction stage. Evidence adduced in support of one party’s case may bear on subsequent issues once jurisdiction has been established. This is particularly important to the financial remedy practitioner, whose clients are frequently motivated by the tax, employment or other financial advantages of living in another jurisdiction.

So, to death and taxes we can add another certainty. It is that a person must be domiciled somewhere. It is hoped that this article has helped to outline how a court will consider a challenge to where that is.

This is an article from the forthcoming Financial Remedies Journal 2026 Issue 1.