Mark v Mark

For matrimonial jurisdiction, unlawful immigration status does not impose an automatic bar on habitual residence or a domicile of choice. Under the pre-amendment Domicile and Matrimonial Proceedings Act 1973, habitual residence is assessed factually, having regard to the quality, nature and extent of residence, the time spent and the circumstances of any illegality. A domicile of choice is a neutral connecting factor and may be acquired despite unlawful residence, although immigration conduct may bear on residence and intention. A blanket exclusion may engage Article 6 where it would deny access to the only realistic forum. No fixed number of days determines habitual residence; the time and pattern of presence must be appreciable.

The wife petitioned for divorce in England while she was an overstayer. She had lived principally in England for many years, with the matrimonial home, children and substantial financial connections here. Hughes J rejected the husband’s jurisdiction challenge on the basis that the wife had a domicile of choice in England and Wales, but held that she could not rely on unlawful residence to establish habitual residence. He also rejected reliance on the husband’s habitual residence. The husband appealed on domicile, and the wife challenged the findings on both parties’ habitual residence. The central issues were whether unlawful residence automatically prevented reliance on habitual residence or domicile, and whether the husband’s intermittent presence was sufficient.

The court dismissed the husband’s appeal on domicile and held that the wife could also rely on habitual residence. The formal order dismissed the appeals, ordered the appellant to pay the respondent’s costs and refused leave to appeal to the House of Lords.

1. Wife’s habitual residence. The court treated the principle stated by Lord Scarman in Reg. v Barnet London Borough Council ex parte Nilish Shah (1983) 2 AC 309 as a public-policy principle developed in the context of immigration benefits, rather than as a statutory requirement that residence be lawful. It did not impose an absolute bar in matrimonial jurisdiction. Illegality and the person’s state of mind may be relevant to the factual assessment, but a person with a settled home and family life in England may establish habitual residence. The circumstances also engaged Article 6 because an absolute rule would deny access to the only realistic forum.
2. Domicile of choice. A domicile of choice is a neutral connecting factor governing personal law as well as jurisdiction. Illegal entry or residence does not automatically prevent its acquisition. Immigration status may be considered insofar as it bears on residence and intention, and the court retains a margin of discretion. The additional proposition approved in Puttick v Attorney General [1980] Fam 1 was unnecessary to that decision and was not followed. The approach in Jablonowski v Jablonowski [1972] 28 DLR (3d) 440 was preferred.
3. Husband’s habitual residence. Habitual residence is not determined by counting days alone. The total time spent and number of visits must be appreciable, but duration is not conclusive. The quality, nature and extent of the residence must be evaluated. Hughes J had applied the correct approach, so the Court of Appeal would not interfere merely because it might have reached a different conclusion.

Waller LJ gave additional reasoning on effective access to the courts under Article 6. Latham LJ expressed reservations about departing from the conventional view but accepted the majority’s analysis to avoid an undesirable distinction between habitual residence and domicile.

• Court of Appeal (Civil Division): Dismissed the husband’s appeal on domicile, allowed the wife’s challenge on habitual residence and held that both jurisdictional bases were available.
• High Court of Justice (Family Division), Hughes J: On 14 August 2002, dismissed the husband’s jurisdiction challenge, finding the wife domiciled in England and Wales but not habitually resident because she was an overstayer. The judge also rejected reliance on the husband’s habitual residence.