Sam Longworth acted for the husband in the recent Court of Appeal case of Kelly v Pyres [2018] EWCA Civ 1368, [2018] All ER (D) 80 (Jun[LB1] ). The court ruled that the wife, who had only been resident in England for 29 months of her life, could not bring divorce proceedings against her husband in this jurisdiction. The case appeared a clear case of forum shopping, a practice whereby divorcing couples who are based in more than one country try to choose a more favourable jurisdiction in which to bring proceedings. Fawn Wilkinson summarises the case below, for Lexis Nexis.

What are the practical implications of the case?

In cases involving international families, the question of jurisdiction does not simply fall to be determined by the current location of the parties, or their place(s) of birth, but also potentially with reference to the acquisition of a domiciliary status in England. The Court of Appeal have firmly limited future forum shopping cases by their approach, but the decision potentially opens the door for individuals who are largely or exclusively working abroad to rely on an acquired domicile of choice in England as long as they can show they were ‘living in England, but working abroad’. Such individuals will need to show a ‘singular and distinctive’ relationship with England. It is a highly fact specific analysis and each case will turn on its own facts and circumstances. Practitioners should therefore ensure that a holistic approach is taken when analysing cases and considering the available evidence.

This case serves as a helpful reminder for practitioners of the tenacity of a person’s domicile of origin and the need for ‘cogent and clear evidence’ to displace it. It was not enough that the wife in this case intended to retire to England in 2037 without evidence to ‘loosen the strong ties with [her] domicile of origin’.

While the Court of Appeal was careful to warn against the dangers of an appellate court interfering with the decision of a first instance judge, who will have had the benefit of hearing the evidence and evaluating the credibility of the relevant witnesses, the appellate courts are willing to interfere with a judge’s inferences from factual findings they have made.

What was this case about?

This case is a clear example of forum shopping. The husband’s domicile of origin was India, the wife’s was Ireland. While the husband had previously lived in England, by the time of the wife’s divorce petition in 2015 he had not lived in England for 12 years. The wife had only lived in England for an extended period of time on two occasions. The first and longest period was 18 months during 1995 and 1997 while she studied for her master’s degree, before leaving to take up an internship in Brussels. The second period was between October 2001 and November 2002 when the wife was employed on a fixed-term contract with a company based in south-west London. Save for these two periods, the wife didn’t live in England and instead pursued her career with the European Commission, working and living in Brussels, Albania, Bosnia and now Serbia. The main family home was in Bosnia; the parties’ children had never known England as their home.

The wife’s case was that while she had worked abroad, her ‘anchor’ was London. The evidence used to support this included that she had completed her master’s thesis on English country houses. She used London addresses for all formal and business correspondence from 1998. She stored her possessions from Ireland at the husband’s property in London. She returned to London for significant medical treatment. She paid national insurance contributions from 2002 as she intended to retire to England.

At first instance it was held that while the husband had at one time acquired a domicile of choice in England (in place of his domicile of origin of India), this had subsequently been lost or abandoned. Conversely, it was found that the wife had acquired (and not lost) a domicile of choice in England by 2000 at the latest and as such was entitled to proceed with her petition in England under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and article 7 of EU Council Regulation No 2201/ 2003 (Brussels II bis). The husband appealed. The wife filed a notice seeking that the decision be upheld or, in the event that the appeal was successful, that the first instance decision be upheld on the basis that she had acquired a domicile of choice in a later period of residence in England between 2001 and 2002.

What did the court decide?

The Court of Appeal held that the judge had made an error in law in treating the period between 1995 and 2000 as a continuum. He did not find that the wife had the requisite intention by 1997 when she was resident. As such, she could not, contrary to the judge’s finding, have acquired a domicile of choice in England. The requisite intention has to be formed at the time when the individual is resident; residence and intention go hand in hand.

Leading counsel for the wife argued that there was sufficient evidence to allow the court to imply that the judge had found the wife to have the required intention during the period that she was resident in Manchester (1995—1997). This assertion was rejected by the Court of the Appeal on the basis that the wife came to England with a specific purpose of studying for her master’s degree. While it may have been a ‘developing picture’, there was no evidence that at the age of 25, the wife had formed the requisite intention to remain. In fact, she left in 1997 before her degree was even awarded.

In respect of the wife’s period of residence between November 2001 and November 2002, while 11 months could be ‘more than ample’ time for residence to be established, the wife had not proven that England was her ‘base, her adopted home’. She ‘chose not to marry, holiday, spend her maternity leave or even have her second child’ in England. All she did was use England for fiscal reasons and medical treatment. If there was any jurisdiction which was potentially available to the wife it was Italy. She had little affection for England.

The Court of Appeal allowed the husband’s appeal and dismissed the wife’s notice. As such, the wife’s petition and her financial claims will not be entitled to proceed in England.

Case details

Court: Court of Appeal, Civil Division
Judge: King, Newey and MacDonald LJJ
Date of judgment: 14 June 2018

This article ‘Residence and intention—the acquisition (or otherwise) of a domicile of choice (Kelly v Pyres)’, first appeared on Lexis PSL. Click here to view the original (Subscription required)

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