M-T v T

Habitual residence is a fact-sensitive concept. It requires residence adopted voluntarily for a settled purpose, but not continuous physical presence. A person may have more than one habitual residence.

Where residence is affected by immigration illegality, there is no absolute rule preventing habitual residence. Illegality and the person’s state of mind form part of the factual inquiry.

A discretionary stay under Schedule 1 to the Divorce and Matrimonial Proceedings Act 1973 requires a two-stage assessment. The court first considers whether another available forum is clearly or distinctly more appropriate. It then considers whether overall fairness nevertheless requires the English proceedings to continue. Conditions may be attached to a stay. A freezing order may continue, but maintenance pending suit ordinarily falls away.

The petitioner brought two petitions seeking divorce or nullity based on alleged customary marriages in Nigeria. The respondent disputed the marriages, relied alternatively on an earlier statutory marriage to another woman, and sought dismissal or a stay.

The parties had Nigerian nationality and the material ceremonies, witnesses, legal issues and relationship history were predominantly connected with Nigeria. The petitioner had lived intermittently in England and Wales, where the twins lived with her and where the respondent had funded her support. She relied on habitual residence and on the financial advantage available under English law.

The court had to determine jurisdiction, whether the second petition disclosed a reasonable cause of action, and whether the English proceedings should be stayed in favour of proceedings in Nigeria.

1. Jurisdiction. Under section 5(2)(a) of the Divorce and Matrimonial Proceedings Act 1973 and Article 2 of Brussels II, the petitioner had to establish habitual residence and at least one year’s prior residence. Habitual residence was a question of fact. It required a voluntary residence for a settled purpose, with physical presence given proper weight, but did not require continuous presence.
2. The decision in Zhu and Chen v SSHD was declaratory of the relevant residence rights. The petitioner, as the primary carer of children who were nationals of a Member State, had a right to reside with them, subject to sickness-insurance and resource conditions. The court therefore treated her presence as lawful for the habitual-residence inquiry. Her absences, including substantial periods in Nigeria, were connected with the parties’ dispute and did not prevent habitual residence.
3. The petitioner was habitually resident in England and Wales when both petitions were issued. The court therefore had jurisdiction to entertain them.
4. Second petition. The alternative case based on the later ceremony was not bound to fail merely because the petitioner also relied on an earlier ceremony, or because there were difficulties concerning intention and the legal effect of the ceremony. The application to strike out the second petition was refused.
5. Stay. Paragraph 9 of Schedule 1 to the Divorce and Matrimonial Proceedings Act 1973 required the statutory balance of fairness to be assessed by the two-stage approach derived from de Dampierre v de Dampierre and Spiliada Maritime Corporation v Cansulex. First, the court identified the forum with the most real and substantial connection. Secondly, it considered whether justice nevertheless required the English proceedings to continue.
6. Nigeria was clearly or distinctly the more appropriate forum for determining status. The relevant ceremonies, Nigerian law, witnesses, parties’ nationality and relationship history were overwhelmingly Nigerian. At the fairness stage, the petitioner’s potential English financial advantage was important but not decisive. The court considered the possible claims under Part III of the Matrimonial and Family Proceedings Act 1984, the children’s potential claims, the parties’ knowledge and motives, their connections with England, and their litigation conduct.
7. The balance of fairness favoured Nigeria. The petitions were stayed until further order. The maintenance-pending-suit orders were discharged. Existing anti-suit restraints were discharged. Existing freezing orders were continued under section 37 of the Supreme Court Act 1981. Conditions were imposed or contemplated concerning the twins’ residence, the petitioner’s safety, Nigerian proceedings, enforcement of financial orders for the children, and a payment to assist the petitioner’s participation in Nigeria.

The judgment records earlier orders and appeals in the same litigation, including directions made by Bennett J and orders of the Court of Appeal. This court determined the preliminary jurisdiction and stay issues pursuant to those directions.