Olafisoye v Olafisoye

Jurisdiction for divorce is assessed at the date when the petition is presented. Habitual residence depends on the person’s established permanent or habitual centre of interests, assessed by all relevant factors. The court may consider the wider period and circumstances when deciding whether habitual residence has continued, rather than treating a single period of physical absence as determinative. Domicile provides a residual jurisdictional basis where the conditions in Domicile and Matrimonial Proceedings Act 1973 and Council Regulation (EC) No 2201/2003 are satisfied.

The wife presented a divorce petition in England on 17 May 2005 and later amended the pleaded jurisdictional grounds. The husband disputed jurisdiction, contending that the parties’ last joint habitual residence was Nigeria and that the wife was neither habitually resident nor domiciled in England and Wales.

The court considered jurisdiction under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and Article 3 of Council Regulation (EC) No 2201/2003. The central questions were whether the wife had been habitually resident in England and Wales for the required period and, alternatively, whether she was domiciled there when the petition was presented.

1. Jurisdictional date. The relevant question was whether the pleaded jurisdictional grounds existed on 17 May 2005, when the petition was presented. Later changes in residence or domicile could support a fresh petition but could not retrospectively establish jurisdiction under the existing petition.
2. Statutory framework. Under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, jurisdiction existed if the court had jurisdiction under Council Regulation (EC) No 2201/2003 or, residually, if either party was domiciled in England and Wales at the commencement of proceedings.
3. Habitual residence. The judge adopted the approach in Marinos v Marinos [2007] EWHC 2047 (Fam), treating habitual residence as the place where a person had established, on a fixed basis, the permanent or habitual centre of interests, with all relevant factors considered. For Article 3 purposes, there could be only one habitual residence at any one time.
4. The wife’s residence had to be assessed by reference to the quantity and quality of her residence during the relevant year, while taking account of the wider history. Her absences in Nigeria were explained by schooling, financial difficulties and personal circumstances, rather than an intention to establish her centre of interests there. Her continuing home, family, study and other connections in England and Scotland showed that she remained habitually resident in England and Wales throughout the relevant period.
5. Domicile. The wife’s English domicile of origin had revived before the marriage or, at the latest, when the marriage broke down and she returned to live in England. Any Nigerian domicile was severed in 2001. She was therefore domiciled in England and Wales when the petition was presented.
6. The court held that it had jurisdiction on the habitual-residence ground and, alternatively, on the residual domicile ground. The separate issue of whether Nigerian proceedings had already dissolved the marriage was not determined.