Munro v Munro

For jurisdiction under Article 3 of Council Regulation (EC) 2201/2003, a domicile of origin continues unless abandonment and acquisition of a domicile of choice are established by cogent evidence showing a fixed and settled intention. Length or fact of residence alone is insufficient. Relevant indicators include intention, conduct, nationality, passports, property, business and continuing connections. Habitual residence means the place where a person has established a permanent or habitual centre of interests, assessed on all relevant facts. The applicant must have been habitually resident in the relevant Member State for at least six months immediately before presentation of the petition. The court also expressed doubts about treating the preceding period as requiring mere residence rather than habitual residence.

The wife petitioned for divorce in England on 17 January 2007. The husband disputed English jurisdiction, arguing that both parties had become habitually resident and domiciled in Spain after moving there in 2003. The wife relied on her English domicile and on the habitual-residence and domicile limbs of Article 3 of Council Regulation (EC) 2201/2003.

The parties were English nationals with English domiciles of origin. They lived and held substantial interests in Spain, but retained significant English connections. The central issues were whether either party had acquired a Spanish domicile of choice and whether the wife had satisfied the relevant habitual-residence requirement.

1. Jurisdiction. The court held that both parties remained domiciled in England on 17 January 2007. The English court therefore had jurisdiction under Article 3(1)(b) of Council Regulation (EC) 2201/2003.
2. Domicile. The burden of proving abandonment of an English domicile of origin and acquisition of a Spanish domicile of choice lay on the husband. The evidence had to go beyond a bare balance of probabilities and be cogent enough to establish a fixed and settled intention to abandon the original domicile and make Spain the permanent home. Residence, business interests and a Spanish home were relevant but not conclusive. Retention of British nationality and passports, an English property, English business connections and continuing access to England were persuasive indicators against a settled intention to acquire a Spanish domicile.
3. The husband’s evidence showed an intention to remain in Spain for the time being, while keeping open the possibility of returning to England. That did not establish the necessary settled intention. The wife’s domicile of origin was likewise not displaced.
4. Habitual residence. Adopting the analysis in Marinos v Marinos [2007] EWHC 2047 (Fam), the court treated habitual residence as the place where a person had established a permanent or habitual centre of interests, considering all relevant facts. A person could not be habitually resident in two countries simultaneously.
5. The judge expressed doubt about the conclusion in Marinos v Marinos that the period preceding the petition required residence but not habitual residence. The judge considered that Article 3(1)(a) required habitual residence in the relevant Member State for at least six months immediately before presentation of the petition. This point was not fully argued and was unnecessary to the result.
6. Had the wife been unable to rely on the parties’ common English domicile, the court would have dismissed the petition for want of jurisdiction. Because Article 3(1)(b) applied, the divorce and ancillary-relief proceedings were permitted to continue in England.