Chandler v Chandler

For divorce jurisdiction in the courts of England and Wales, domicile is determined by the lex fori, namely the law of England and Wales. Article 3.1(b) of Brussels II Revised does not require or permit the court to apply the law of another territorial unit, including Gibraltar. The rule applies whether the other territory is dependent or independent.

The appellant’s divorce petition had been struck out for want of jurisdiction by Baron J in a judgment dated 14 September 2010. Sir Mark Potter provisionally refused permission to appeal on 12 November 2010. The appellant renewed that application before the Court of Appeal.

The central issue was whether the wife’s domicile for the purposes of Article 3.1(b) of Brussels II Revised was to be determined under the law of England and Wales, where the petition was filed, or under Gibraltar law, where the parties had married and the husband had business interests.

1. Application refused. Thorpe LJ endorsed Sir Mark Potter’s provisional refusal of permission to appeal.
2. The judge below had correctly held that the law applicable when determining domicile for jurisdiction in the courts of England and Wales is the lex fori, namely English law. The distinct legal system operating in Gibraltar did not alter that conclusion.
3. Brussels II Revised establishes broad jurisdictional bases for divorce, including, for the United Kingdom and Ireland, the domicile of both spouses under Article 3.1(b). Article 66 addresses references to domicile in states having more than one legal system. Those provisions did not displace the established rule that the English court applies its own law when determining domicile for the purposes of its jurisdiction.
4. The abolition of domicile of dependency in England and Wales in 1973, and its later abolition in Gibraltar by the Matrimonial Causes (Amendment) Act 2009, did not require the English court to apply Gibraltar law. A petitioner asserting domicile in England and Wales must be judged by the law of the forum, whether the other territory is dependent or independent.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused, and the provisional refusal was endorsed: [2011] EWCA Civ 143 .
2. Principal Registry, Family Division: Baron J struck out the divorce petition for want of jurisdiction in a judgment dated 14 September 2010.