V v V

For divorce jurisdiction under the fifth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003, the applicant must establish habitual residence in the relevant Member State when the petition is presented and residence there for at least one year immediately beforehand. Residence and habitual residence are distinct concepts. Habitual residence cannot exist simultaneously in two countries for EU-law purposes, but a person may have more than one residence at the same time. Whether an absence changes residence depends on the whole factual context, including its purpose and temporary character. A temporary stay abroad, even for a school term, does not necessarily displace residence where the person’s established home and centre of interests remain in the jurisdiction.

The wife issued a divorce petition in England on 1 April 2010, relying on the fifth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003. She asserted that she had been habitually resident in London since August 2008. The husband accepted habitual residence until December 2009 but argued that she had then moved to Switzerland, where she stayed with the children until March 2010.

The court determined the factual character of the Swiss stay, the meaning of residence in the fifth indent, and whether the wife remained habitually resident or resident in London for the required period.

1. Jurisdiction established. The wife was habitually resident in London when she presented her petition and was entitled to proceed with it.
2. The court preferred the interpretation in Marinos v Marinos [2007] 2 FLR 1018 to that in Munro v Munro [2008] 1 FLR 1613. The fifth indent requires habitual residence at the date of the petition and residence, which need not itself be habitual, in the jurisdiction for at least one year immediately beforehand.
3. Habitual residence is objective and concerns the place where the person has established, on a fixed basis, the habitual centre of interests. Intention is relevant only as an objectively assessed reason for conduct.
4. The wife’s home, social and family connections, children’s schooling, medical and other services, course of study, possessions and dogs were in London. Her stay in Switzerland was temporary and did not displace her habitual residence or residence in London.
5. A person may be resident in more than one country simultaneously, although habitual residence cannot exist simultaneously in two countries for EU-law purposes. The court also rejected the contention that the wife had become habitually resident in Switzerland or had ceased to be habitually resident anywhere.
6. The parties were directed to provide updated costs schedules at every future hearing. The court emphasised the need to consider alternative dispute resolution under Part 3 of the Family Procedure Rules 2010.

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