Mark v. Mark

The House of Lords held that unlawful presence in the United Kingdom is not, as a matter of law, a bar to the acquisition of a domicile of choice or to establishing habitual residence for the purpose of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. Habitual residence is a question of fact, to be decided by applying the test derived from Levene v Inland Revenue Commissioners and R v Barnet London Borough Council, Ex p Nilish Shah. The legality of residence may be relevant evidence bearing on whether the requisite intention to remain (animus manendi) or the factual indicators of habitual residence exist, but illegality is not an automatic legal disqualification. The court rejected a rule that domicile of choice cannot be acquired "in the teeth of the law" and emphasised that domicile is a single, uniform common law concept concerned with personal status. The court therefore found jurisdiction under s 5(2) both by habitual residence and by domicile.

This appeal concerned whether a wife, present in the United Kingdom in breach of the Immigration Act 1971, could found the jurisdiction of the English courts to grant a divorce under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 by relying on either habitual residence throughout the preceding year or by having acquired a domicile of choice in England and Wales.

Background and parties:

• The parties were Nigerian nationals married in 1979 and later living in England; the wife became an overstayer after limited leave to remain expired in April 1998. The husband returned to Nigeria in 1998 and became involved in politics. The wife issued divorce proceedings in July 2000, initially relying on habitual residence and later also on domicile of choice.
• Procedural history: Hughes J first dealt with a stay application and later tried the issue of the impact of the wife’s unlawful presence on jurisdiction. The Court of Appeal ([2004] EWCA Civ 168) dismissed the husband’s appeal, and the husband appealed to the House of Lords.

Nature of the claim and issues:

• The relief sought was a declaration that the English court had jurisdiction to entertain the wife’s divorce petition under s 5(2) of the 1973 Act.
• The principal issues were (i) whether unlawful presence prevented the wife from being "habitually resident" for the preceding year for the purposes of s 5(2)(b), and (ii) whether unlawful presence prevented acquisition of a domicile of choice in England so as to defeat jurisdiction under s 5(2)(a).

Court’s reasoning:

• On habitual residence the House followed the test in Shah ([1983] 2 AC 309): ordinary or habitual residence is essentially factual (an adopted abode for settled purposes) and the requirement that residence be "lawful" should not be implied into s 5(2); illegality may be evidence against habitual residence but is not determinative as a matter of law.
• On domicile the court distinguished domicile (a single common law concept governing personal status) from habitual residence. The House rejected a rule that unlawful residence automatically prevents acquisition of a domicile of choice. Residence and animus manendi remain factual inquiries; illegality may affect the quality of the animus but not its legal sufficiency per se. The court therefore recognised that the wife could acquire a domicile of choice despite unlawful presence.
• The court reviewed authorities both supporting and rejecting the proposition that illegality prevents acquisition of domicile and concluded there was no principled reason to treat illegality as a bar.

Conclusion: The House dismissed the appeal, upholding the Court of Appeal and Hughes J: the courts had jurisdiction on both habitual residence and domicile bases. The court emphasised that illegality is a factual consideration, not a categorical legal bar.

Appeal dismissed. The House held that unlawful presence under the Immigration Act 1971 is not, as a matter of law, a bar to establishing habitual residence for the purpose of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 nor to acquiring a domicile of choice. Illegality may be relevant to the factual inquiries (habitual residence and animus manendi) but does not automatically disqualify a person from acquiring domicile or habitual residence.

Appeal from the Court of Appeal, Civil Division ([2004] EWCA Civ 168). The primary judge was Hughes J (reserved judgments dated 14 March 2002 and 14 August 2002). The Court of Appeal dismissed the husband's appeal, and the matter was then heard by the House of Lords.