(This article appeared in Private Client Business 2017, and is reproduced with permission of Thomson Reuters).

In Re B (Children) (2012) EWCA Civ 1082 Thorpe LJ noted the increasing universality of habitual residence as the jurisdictional foundation in European and global international family justice. It forms the primary basis for jurisdiction in matters of parental responsibility, but also in the context of financial claims pursuant to the European Maintenance Regulation (No 4/2009), and as the basis for divorce and civil partnership dissolution under Brussels II revised. The concept of domicile is of course a long and widely used jurisdictional connecting factor across many areas of law. This article will consider the role of domicile, and the complications presented by an examination of a litigant’s domicile, exclusively in international family law in England and Wales; it is not intended to contemplate its function in wider areas of private international law (or indeed as regards taxation).

The object of jurisdictional rules is to determine forum, and the choice of the jurisdictional connecting factor can have a profound effect on the founding (or not) of jurisdiction. The difference between jurisdictional connecting factors principally lies in the degree of connection (whether temporal, degree of integration or legal in terms of permission to reside) between the party and the forum. The appropriateness of the connecting factor will depend on the subject matter of the dispute. In disputes relating to the welfare of children, the universal touchstone of jurisdiction in England and Wales is habitual residence (with other residual and very much exceptional jurisdictional avenues found, for instance, on the basis of presence or forum necessitatis), the underlying policy consideration being that the courts of the country in which the child has his home are generally best placed to determine decisions relating to the child’s future.

In issues relating to status (including divorce) the considerations can be more complex. The primary basis for divorce jurisdiction is habitual residence of the spouses (whether both of them or, provided the residence has endured for six months, just one, and whatever may be their nationality and regardless of the county in which they married). However, it may also be appropriate for England and Wales to be seised of status proceedings relating to spouses living abroad (and therefore not habitually resident in England and Wales) but who retain a connection with this country. It is by virtue of this alternative proposition that the concept of domicile retains a role within divorce jurisdiction, through two mechanisms:

• Firstly, and primarily, through Article 3(1)(b) of the revised Brussels II regulation (viz. jurisdiction shall lie with the courts of the Member State “of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the ‘domicile’ of both spouses”);
• Secondly, in the event that no court of an EU Member State has jurisdiction based on either habitual residence of one or both the parties or their joint domicile, by virtue of the domestic provisions found in s.5(2) Domicile and Matrimonial Proceedings Act 1973 which provides for the ‘fall-back’ requirement that jurisdiction can be found in England and Wales if “either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun”.

It was this second of these mechanisms which fell for consideration by Cobb J in J v U; U v J (No 2) (Domicile) [2017] EWHC 449 (Fam), a case which neatly encapsulates the difficulties in examining a person’s domicile. The roots of these complications appear to be broadly threefold: firstly the complexity of meaning of the term domicile itself; secondly the difficulty of applying an often multifaceted factual matrix to the definition; thirdly the effect of the recent jurisprudential focus on the concept of habitual residence.

The following is a very brief summary of the concept of domicile. Central to it is the principle that no person can be without a domicile, be it their domicile of origin, domicile of choice, or domicile of dependency. A person is in general domiciled in the country in which he is considered to have his permanent home, but the domicile of origin (received at birth) is said to be more ‘tenacious’ than other forms of domicile. Uniquely, a domicile of origin is never entirely lost, but merely held in abeyance: if a domicile of choice is abandoned but a new domicile of choice has not been acquired, the domicile of origin will revive. As to the acquisition of a domicile of choice, the combination of residence (the length of which is itself not important) and intention of permanent or indefinite residence is required – what is known as the animus manendi. In Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 Arden LJ described this as the place which the person would consider his “ultimate home, or, as it has been put, the place where he would wish to spend his last days”. Cogent and clear evidence is needed to show that a domicile of origin has been lost for the acquisition of a domicile of choice, and also for the loss of a domicile of choice. An independent domicile cannot, however, be acquired by a person under 16: the domicile of a dependent person will follow the domicile of the person on whom he is dependent. It is said that domicile is a mixed question of fact and law, and it can be seen from this brief summary of the principles that the intention of the person is critical. Dicey, referring to Drevon v Drevon (1864) 34 LJ Ch 129, describes how all facts and circumstances, however trivial, of a person’s life may provide evidence of the intention.

J v U concerned a husband in his seventies born in Mumbai (then Bombay) to Indian parents, and a wife in her forties born to Irish parents in England whilst her father was on a short secondment. The husband’s family moved from India to England prior to the husband’s 16th birthday and his father became a naturalised British citizen when the husband was 15 (raising an issue as to domicile of dependency). The husband lived and worked in the UK for over 30 years (with over 20 years in the Civil Service), married and bought property here, before moving to Luxembourg in 1995 and thereafter living abroad with only a short period of time returning to the UK to work in around 2001/2002. It was the husband’s case that he was never happy in England, that he never integrated fully into English life, did not feel himself welcome here and was the victim of abuse and prejudice. The finding by Cobb J in relation to his domicile was, however, that he had probably at some point acquired a domicile of choice, but over the last ten years this had been lost or abandoned, and his domicile of origin in India had revived.

In respect of the wife, save for some 7 months after her birth, she had lived in Ireland throughout her childhood, school and university. In 1995 she came to Manchester aged 23 to undertake a Masters, and was in the UK for approximately 18 months. This was the longest continuous period she had lived in England, since following the completion of her education in 1997 she undertook an internship in Brussels where she remained for work until 2001. She had met the husband in Brussels in the late 1990s, and they married in Italy in 2005. In 2001, they moved to England (living in a house owned by the husband but shared with other tenants) until, 11 months later in 2002, she moved to Albania to work for the EU delegation. She had continued to work for the EU ever since, moving to Bosnia and subsequently to Serbia. The judge described the manner in which both parties had lived their lives for the last 20 years as “peripatetic… not untypical of those in the diplomatic service. They have been subject to a number of temporary postings, in the Petitioner’s [wife] case on rotation, in countries to which they otherwise have no connection”.

Whilst noting the very temporary nature of the wife’s residence in England (two occasions between 1995 and 1997, and then 2001 to 2002), the judge nonetheless found that she had retained strong practical, financial and fiscal links to the UK, that London had been the city to which she had returned for important medical treatment, and that she had viewed it as her ‘base’ in place of Ireland from 1995 onwards. Cobb J’s conclusion was that “from 2000 at the latest (though it was a developing picture from 1995, the Petitioner had acquired a domicile of choice in England and Wales, which has not been lost notwithstanding her various posting abroad”.

In reliance upon a number of grounds, the determination by Cobb J in respect of the wife’s domicile is currently subject to an application for permission to appeal. It is not intended to explore those grounds here; the point of interest for this article is the degree to which Cobb J’s analysis was in reality an exploration of some of the aspects more commonly seen in an habitual residence enquiry.

As detailed at the outset, habitual residence has become increasingly universal as a jurisdictional connecting factor; as Hill and Shuilleabhain describe (2016, 5th edition of Clarkson and Hill’s Conflict of Laws) the concept has emerged over the past 40 years as the predominant factor in English and EU conflict of laws. There has been extensive jurisprudence as to its meaning, particularly in relation to international child abduction cases under the 1980 Hague Convention on the Civil Aspects of Child Abduction, and in relation to divorce jurisdiction (see e.g. Marinos v Marinos [2007] 2 FLR 1018, Z v Z (Divorce: Jurisdiction) [2010] 1 FLR 694, V v V (Divorce: Jurisdiction) [2011] 2 FLR 778 and Tan v Choy [2015] 1 FLR 492). Centre of interests and subjective intention have become crucial in the determination of a person’s habitual residence, “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence” (from the Explanatory Report (the Borras Report) to the Brussels II Convention, which became the Brussels II regulation). As Hill and Shuilleabhain note, whilst there has not been an equating of domicile and habitual residence, the nature of the habitual residence enquiry has caused “a drifting closerto traditional conceptions of domicile”.

The wife in J v U, being habitually resident in Serbia, could of course never establish habitual residence to found jurisdiction for an English divorce petition. But aside from actual residence, much of the court’s analysis and focus on her subjective intention and her establishment of a base or centre of interests was precisely akin to a habitual residence enquiry. It could be said that what she established was ‘habitual residence light’ – habitual residence without the residence. This produces an unfortunate paradox: the law on domicile emphasises the tenacity or stickiness of the concept, with a “heavy” burden of proof on losing a domicile of origin (see Cyganik v Agulian [2006] 1 FCR 406), but if what the wife in J v U in fact established was a lesser form of habitual residence, these essential concepts of domicile have been lost.

Unlike habitual residence which is a relatively modern concept, domicile has its roots in decisions of the courts in the Victorian age, a time when the permanency of home (in broad terms, what domicile really means) was less changeable than today. Modern day fluidity of movement and changing intentions as to where one might make ones permanent home, as aptly demonstrated by J v U, reduces the appropriateness of domicile as a connecting factor. Whilst abolition of domicile in favour of universal application of habitual residence as a connecting factor may superficially seem an attractive option in terms of achieving certainty, in reality this is not a solution. Abolition was considered but rejected by the Law Commission in 1987, and similarly by the Law Reform Commission of Hong Kong in 2005. There were a number of reasons why both commissions opted to retain domicile. The problem for the English-domiciled couple habitually resident abroad but retaining a strong connection with, and perhaps property in, England demonstrates the drawbacks of jurisdictional rules which do not retain the residual connecting factor of domicile. The foreign court may have very different rules on financial provision ancillary to divorce. Whilst adverse financial consequences may be mitigated to some degree by the ability of the English court to make provision ancillary to a foreign divorce under Part III of the Matrimonial and Family Proceedings Act 1984, there may also be status implications of the application of foreign law (e.g. capacity to marry), or it may for straightforward practical reasons be inconvenient for an English-domiciled family, with property in the UK, to be required to divorce abroad.

With retention of domicile (in some form) being desirable, the difficulties displayed by J v Unevertheless give sustenance to the debate, advanced by Hill and Shuilleabhain (supra), that the outdated nature of domicile requires a redoubling of the efforts to reform it. They call for “a more modern and realistic concept” that would enable “a functional analysis to determine which connecting factor, domicile or habitual residence (or even, perhaps sometimes, nationality), is most suitable for each conflicts rule”. However, in the immediate term J v U demonstrates that the courts should be alert to the hard-core of principles relevant to domicile, and must be conscientious in applying them. The combination of the wealth of habitual residence case law, the well-developed understanding of that concept, and the extent to which there is some overlap between the factors relevant to habitual residence and domicile, underline the importance of the courts avoiding the trap of drifting from one to the other.