Mark (Respondent) v. Mark (Appellant)

For matrimonial jurisdiction under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, habitual residence need not be lawful under immigration law. Habitual residence is a factual connection assessed in its statutory context. Immigration illegality may be relevant evidence, but it is not an absolute bar.

A domicile of choice arises from residence combined with a genuine intention to make the country a permanent or indefinite home. Unlawful presence does not prevent its acquisition as a matter of law. Legality may bear on the credibility of the required intention, but it is neither an additional legal condition nor a matter of judicial discretion. Domicile is a neutral connecting rule governing private-law status, not a benefit conferred on the person concerned.

The parties were Nigerian nationals married under Nigerian customary law. After establishing a matrimonial home in England, the wife remained after her limited immigration leave expired. She later petitioned for divorce and ancillary relief, relying on habitual residence and an English domicile of choice to establish jurisdiction under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.

Hughes J held that the wife's unlawful presence could not establish habitual residence but could support a domicile of choice. The Court of Appeal, in [2004] EWCA Civ 168, held that she satisfied both jurisdictional bases and dismissed the husband's appeal.

The central issue before the House was whether presence constituting an immigration offence prevented the wife from being habitually resident or domiciled in England and Wales.

1. Appeal dismissed unanimously. Baroness Hale of Richmond delivered the leading speech, whose reasoning was accepted by every member of the Appellate Committee. The English court had jurisdiction under both limbs of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.

2. Per Baroness Hale, habitual residence is a factual concept whose meaning depends on the context and purpose of the governing statute. For matrimonial jurisdiction, there was no reason to imply a requirement of lawful residence. The purpose of section 5(2) was to identify a sufficiently close connection with England and Wales. That purpose favoured jurisdiction over the personal affairs of long-standing residents and the interests of affected family members.

   The factual test stated in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 remained applicable. Its statement that unlawful residence could not constitute ordinary residence was strictly obiter and arose from immigration legislation with a materially different purpose. Immigration status may affect whether residence is genuinely habitual, but it creates no absolute bar under section 5(2).

3. Per Baroness Hale, an adult acquires a domicile of choice through the coincidence of residence and a genuine intention to make the country a permanent or indefinite home. Domicile is a neutral rule connecting a person with a system of private law. It is not an advantage which public policy must withhold because the person's presence is unlawful.

   Lawfulness is neither an element of residence nor a legal condition of the required animus manendi. It may be relevant evidence when the court decides whether the intention is genuine, but the issue remains one of fact. The court cannot grant or withhold domicile by reference to merit, discretion or moral turpitude. The proposition adopted obiter in Puttick v Attorney-General [1980] Fam 1, and the contrary approaches in Solomon v Solomon and Smith v Smith, were not followed.

4. Lord Hope of Craighead, in additional reasoning accepted by Lord Nicholls, Lord Phillips and Baroness Hale, distinguished public-law immigration status from the private-law civil status determined by domicile. Whether a person is physically present does not depend on whether entry or continued presence is lawful. Once credible evidence establishes residence and the intention to remain indefinitely, principle requires recognition of the domicile of choice.

1. House of Lords: In Mark (Respondent) v. Mark (Appellant) [2005] UKHL 42, the House unanimously dismissed the husband's appeal and affirmed jurisdiction on the grounds of both habitual residence and domicile.
2. Court of Appeal: In [2004] EWCA Civ 168, the court dismissed the husband's appeal, holding that the wife had acquired an English domicile of choice and had been habitually resident in England throughout the preceding year.
3. High Court, Family Division: Hughes J held on 14 August 2002 that unlawful presence could not establish habitual residence but did not prevent acquisition of a domicile of choice. He therefore held that the English court had jurisdiction.