Ikimi v Ikimi

For divorce jurisdiction under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, habitual residence bears the same meaning as ordinary residence. Residence must be adopted voluntarily for a settled purpose and normally maintained apart from temporary or occasional absences.

A person may be habitually resident in two countries simultaneously. Where habitual residence must continue throughout a specified year, however, bodily presence remains important. Token presence is insufficient; the petitioner must have spent an appreciable part of the year within the jurisdiction. Whether absences interrupt habitual residence is a fact-sensitive assessment of their duration, distribution and character.

The Nigerian spouses maintained substantial matrimonial homes in Nigeria and England. Their children were educated principally in England. After the parties separated, the husband began divorce proceedings in Nigeria and the wife later petitioned in England.

The wife's English petition depended on section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973. She had been physically present in England for 161 days, or 44 per cent, of the year preceding her petition. Coleridge J held that she had nevertheless been habitually resident in England throughout that year.

The husband appealed, arguing that simultaneous habitual residence was impossible, that the wife's presence did not amount to habitual residence and that her absences defeated the statutory requirement of continuity.

1. Appeal dismissed unanimously. Thorpe LJ delivered the leading judgment. Clarke LJ agreed entirely with his analysis and conclusion, and Holland J also agreed.

2. In the context of divorce jurisdiction, the change from “ordinary residence” to “habitual residence” did not change the governing test. The expressions therefore bear the same meaning for section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. The meaning of habitual residence should also remain consistent across domestic family law statutes, although the court reserved the position under international instruments such as the Hague Convention.

3. Following Reg v Barnet LBC, Ex Parte Shah [1983] 2 AC 309, residence must be voluntarily adopted for a settled purpose. The purpose need not be indefinite, but it must possess sufficient continuity. Habitual residence means normal residence apart from temporary or occasional absences, whether long or short.

4. A person may be habitually resident in two countries simultaneously. The “real home” approach was incompatible with that conclusion. The concept of alternating habitual residence discussed in Re V (Abduction: Habitual Residence) [1995] 2 FLR 992 reflected that case's particular facts and could not provide a general solution for families moving frequently between two countries.

5. Coleridge J's approach was too relaxed because it could have treated minimal bodily presence as sufficient. Habitual residence differs from domicile. Where the statute requires habitual residence throughout a stated period, bodily presence must rise appreciably above a token level. The court declined to formulate a universal numerical threshold.

6. The wife had voluntarily adopted the English home for settled purposes connected with her children, marriage breakdown and health care. Her 161 days in England constituted just sufficient presence. Considering all the circumstances, her five periods abroad could be characterised as temporary or occasional absences, so English jurisdiction existed. Whether the proceedings should continue in England remained for determination on the husband's stay application.

1. Court of Appeal: The husband's appeal was dismissed unanimously. The court upheld the conclusion that the wife was habitually resident in England and Wales throughout the relevant year, although it rejected the High Court's overly relaxed formulation of the test.

2. High Court, Family Division: Coleridge J determined the preliminary jurisdictional issue in the wife's favour. He held that the English court had jurisdiction under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. No citation for that decision is stated.