Marinos v Marinos

For the purposes of Article 3 of Council Regulation (EC) No 2201/2203 (Brussels II (revised)), “habitually resident” has an autonomous Community-law meaning. It identifies the place where the person has established, on a fixed basis, the permanent or habitual centre of his or her interests, assessed in the light of all relevant facts and the purpose of the Regulation.

A person can have only one habitual residence under Article 3 at any given time. “Resided” is a distinct and broader expression. The applicant must be habitually resident in the relevant Member State when applying, but need only have resided there during the preceding statutory period. Habitual residence may arise very quickly where there is a planned, purposeful and permanent relocation.

The wife, an English national by domicile, petitioned for divorce in England on 1 February 2007 after returning from Greece with the parties’ children on 31 January 2007. The husband disputed jurisdiction and sought a stay, contending that the wife was habitually resident in Greece.

The parties had lived in Greece since 2002, but the wife continued substantial employment and education in England and maintained extensive personal and financial connections there. The central questions were whether she was habitually resident in England when she petitioned, whether she had resided there for the preceding six months, and whether the Regulation permitted simultaneous habitual residences.

1. Jurisdiction. The husband’s application for a stay was dismissed. The English court had jurisdiction under Article 3(1)(a) of Council Regulation (EC) No 2201/2203 and, as the court first seised, was entitled to proceed in priority to the Greek court.
2. Autonomous meaning. “Habitually resident” has an autonomous Community-law meaning. It means the place where the person has established, on a fixed basis, the permanent or habitual centre of his or her interests, assessed by reference to all relevant facts and to the aim and scheme of the Regulation. The assessment is qualitative rather than a mechanical calculation of days. Relevant matters include family circumstances, reasons for moving, length and continuity of residence, employment, education, intention and other continuing links.
3. Context. The weight of individual factors depends on the family-law context. The location of the matrimonial and family home is important, but so are employment and education. A presumption arising from stable employment in another Member State carries less weight where the person is considered as a spouse rather than as a worker claiming social-security benefits.
4. Single habitual residence. A person can have only one habitual residence for the purposes of Article 3 at any given time. Domestic authorities recognising concurrent habitual residences do not govern the autonomous Community-law concept.
5. Residence and habitual residence. Article 3 deliberately distinguishes “habitually resident” from “resided”. The applicant must be habitually resident in the relevant Member State on the application date, but need only have resided there during the preceding six-month or twelve-month period, as applicable. Residence may exist in more than one country.
6. Application. The wife was resident in England and Greece from about September 2004, but the overall centre of her interests was in England. Alternatively, even if she had remained habitually resident in Greece until 30 January 2007, her planned and permanent relocation with the children enabled her to acquire habitual residence in England virtually contemporaneously with her arrival. The absence of any minimum period in Community law meant that habitual residence could be acquired within less than 24 hours.