Dallen v Dallen

An application to reopen or stay divorce proceedings must be made promptly and by the correct procedural route. A stay raising forum non conveniens should ordinarily be sought at the onset of proceedings, before significant steps or costs. Irregular service ordinarily makes subsequent proceedings voidable rather than void. Domicile depends on both residence and intention to remain indefinitely. Wrongful removal of children, without more, does not prevent reliance on an English domicile of origin.

The wife petitioned for divorce in England after leaving Venezuela with the parties’ children. A decree nisi was pronounced on 20 September 2002 after service of the divorce documents and the husband’s failure to file an answer. The husband later applied to set aside the decree nisi, obtain permission to file an answer out of time, challenge jurisdiction by reference to domicile, and secure a stay under the Domicile and Matrimonial Proceedings Act 1973.

Mr Justice Kirkwood refused to restrain or stay the making of the decree absolute and dismissed the husband’s applications. The husband sought permission to appeal. The central questions were whether there was any realistic prospect of establishing procedural irregularity, obtaining a statutory stay, or defeating the wife’s English jurisdiction on domicile and public policy grounds.

1. Application dismissed. The challenge to Mr Justice Kirkwood’s refusal to stay the decree absolute had no realistic prospect of success. The lateness of the application alone justified refusing to interfere with the exercise of discretion.
2. The proposed stay under section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 faced three independent obstacles. The husband had already unsuccessfully sought a stay before Mr Justice Bodey, and the rule in Henderson v Henderson made a second attempt on grounds previously available unrealistic. Paragraph 9(1A) permitted intervention only while no trial or first trial had begun. The application was also made too late under the principle stated in Mansour v Mansour [1989] 1 FLR 418.
3. The technical challenge to service disclosed no arguable injustice. The husband had received the petition and related documents, had been given an opportunity to answer, and had received the order treating service as effective. Even if service had been irregular, the consequence would ordinarily be that later proceedings were voidable, not void.
4. The jurisdiction challenge was hopeless. Domicile required both residence and an intention to remain indefinitely. Applying Tee v Tee [1974] 1 WLR 213, the wife’s departure from Venezuela without intending to return could terminate a Venezuelan domicile of choice, leaving her domicile of origin available or reacquired.
5. Puttick v Attorney-General and another [1980] Fam 1 did not assist the husband. The wife had entered England lawfully as a British citizen. Wrongful removal of the children did not justify denying divorce rights founded on an English domicile. The application was dismissed with costs of £5,147.92, payable forthwith.

• Court of Appeal (Civil Division): permission to appeal was refused and the application was dismissed with costs.
• High Court of Justice, Family Division: Mr Justice Kirkwood refused to restrain or stay the making of the decree absolute and dismissed the husband’s applications concerning the decree nisi, an answer out of time, and a statutory stay.