The recent Court of Appeal (CoA) judgement provides critical guidance on establishing legal connections to a country, particularly where a person's life involves significant international movement.
Facts:
The wife was born in Mauritius, establishing her domicile of origin there, but moved to England in 2000 on a student visa. In 2003, she married her husband, a British and Mauritian national and resided in the UK continuously until September 2019, gaining indefinite leave to remain and British citizenship in 2018. Their two children were both born in England.
In September 2019, the entire family moved to Mauritius. The wife contended that this move was temporary and financially driven, with an ultimate plan to move to Singapore for the husband's business before eventually returning to England. However, they became "stuck", initially due to financial constraints and later because of the COVID-19 pandemic.
Unfortunately, the marriage broke down, and the parties separated in November 2020, remaining in Mauritius until 8 October 2022, when the wife travelled to England with the children and filed for divorce there on 11 October 2022. The husband then initiated Hague child abduction proceedings in England (later dismissed) and divorce proceedings in Mauritius (ongoing).
Prima facie, the Judge found that the wife had acquired a domicile of choice in England at some point before 2016. Crucially, however, he concluded that this English domicile of choice had ended when the family left England in September 2019, thereby reviving her Mauritian domicile of origin. He based this on the "inescapable conclusion" drawn from their plans at the time of departure, noting that her stated aspirations to return were insufficient. The wife appealed.
Decision:
The CoA set the High Court’s decision aside and remitted the matter for rehearing. Lord Justice Moylan's judgement delves into the legal principles governing domicile, which are critical for establishing jurisdiction in divorce proceedings in England and Wales. The relevant ground for jurisdiction here is that "on the date of the application… either of the parties to the marriage is domiciled in England and Wales", Section 5(2)(g) of the Domicile and Matrimonial Proceedings Act (DaMPA) 1973. Thus, the Court needed to determine the wife's domicile on 11 October 2022.
Lord Justice Moylan emphasises that the burden of proving a change of domicile lies on the party asserting it. In this case, if the wife successfully established that she had acquired an English domicile of choice before 2019, then the husband has the burden of proving that she lost it before 11 October 2022. This means the original Judge was incorrect in implying that the entire burden of proof rested solely on the wife.
Regarding the standard of proof, a change in domicile must be proven on the balance of probabilities. However, the acquisition or loss of a domicile of choice is considered a "serious matter" requiring "cogent and clear evidence" to satisfy the Court's "judicial conscience". The weight of evidence required to displace a domicile of origin (or an existing domicile of choice) is the same due to the serious consequences involved.
The Court further elaborates on the "intention" element for acquiring or losing a domicile of choice. This requires a "settled intention to make his home permanently or indefinitely". While contemplating that a future move is not necessarily decisive, the key lies in the nature of the contingency. A vague possibility (e.g., "making a fortune") is consistent with the required intention, but a "clearly foreseen and reasonably anticipated contingency" (e.g., termination of employment, inheriting property) might prevent the acquisition of a domicile of choice. If a person intends to reside for a fixed period or for an indefinite time but clearly intends to leave at some time, the necessary intention for a domicile of choice is lacking.
Finally, a domicile of choice is lost when both the residence and the intention to reside permanently or indefinitely are given up. Proving a positive intention not to return is unnecessary, as the absence of an intention to continue residing suffices. The determination of a person's intention is a subjective issue of fact, requiring a "global evaluation of all the relevant facts" and a consideration of the "whole evidential history". There is no fixed rule for the weight to be given to specific evidence, and judicial language might vary across cases due to the diverse factual scenarios.
Implications:
This judgement provides a crucial reminder and detailed exposition of the nuanced rules surrounding domicile, particularly the often-overlooked area of the loss of a domicile of choice. It reiterates that acquisition and loss are two sides of the same coin, requiring both a cessation of residence and an absence of intention for permanent-indefinite residence. The ruling establishes that a court must conduct a holistic review of a person’s life and intentions, and not merely review isolated events.
The case serves as a powerful reminder that jurisdiction for divorce proceedings in England and Wales is no mere formality. When a client's connection to the country is not straightforward—for instance, where they have lived abroad for a period—family lawyers must undertake a meticulous analysis of domicile. Once that domicile is established, the burden shifts to the party claiming that it was lost. The case has been remitted for rehearing.
