A v L

For domicile of choice, the court must find both residence in fact and an intention to reside permanently or indefinitely. The intention need not be irrevocable or expressed in positive terms. The court must assess all relevant circumstances, including nationality, conduct, family connections and the reasons for residence. An existing domicile continues until a new domicile is proved, with a stronger presumption applying to domicile of origin.

Where no Member State has jurisdiction under Article 3 of Brussels II Revised, jurisdiction may arise under Article 7 and domestic law. A stay under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 requires the applicant first to establish that the foreign court has jurisdiction. If that is shown, fairness and convenience remain relevant.

The petitioner and respondent were Libyan by birth and naturalised British citizens. After living in Libya, Egypt and England, the marriage broke down in 2006. The petitioner presented a second divorce petition in England on 6 May 2008 after an earlier petition had been dismissed for want of jurisdiction.

She relied on habitual residence and domicile under Article 3 and Article 7 of Brussels II Revised and section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973. The respondent challenged jurisdiction and sought a stay because he had commenced divorce proceedings in Egypt. The issues were whether the petitioner was domiciled or habitually resident in England and whether the Egyptian proceedings justified a stay.

1. Jurisdiction. The petitioner was physically resident in England when the second petition was presented and had formed the intention to reside there permanently or indefinitely. Her domicile of origin in Libya had therefore been replaced by a domicile of choice in England. The court accepted that the family’s intended settlement in England from 1990, their indefinite leave to remain, acquisition of a home and business, British nationality, family connections and the petitioner’s circumstances after the marital breakdown supported that conclusion.
2. The petitioner had not established the required period of residence for either the one-year or six-month jurisdictional bases under Article 3. Since no Member State had jurisdiction under Article 3, Article 7 applied and section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973 gave the court jurisdiction by reason of her English domicile. The application to withdraw the petition for want of jurisdiction therefore failed.
3. Stay. Under paragraph 9 of Schedule 1 to the 1973 Act, the respondent had to establish, on the balance of probabilities, that the Egyptian court had jurisdiction before the court could assess the balance of fairness and convenience. The expert evidence showed that the Egyptian court lacked jurisdiction over the petitioner, who had no Egyptian domicile or residence and had not accepted the Egyptian court’s competence.
4. The stay application accordingly failed at the first hurdle. In any event, England was the fairer and more convenient forum because the parties were British citizens, their principal assets and business interests were in England, the petitioner was domiciled and habitually resident there, and proceedings in Egypt would involve substantial delay and materially less effective financial relief.

First-instance decision. No appellate history is stated in the judgment.