Saward v Saward

For jurisdiction under Article 3.1 of Council Regulation (EC) No 2201/2003, habitual residence has an autonomous meaning. It concerns the place where a person has established, on a fixed basis, the permanent or habitual centre of their interests, assessed by reference to all relevant factors. An appeal has no real prospect of success where the first-instance judge considered all relevant factors, considered no irrelevant factors, and the challenge amounts only to disagreement about the weight given to them. The Court of Appeal refused permission to appeal against the setting aside of a decree nisi for want of jurisdiction and against the consequential costs orders.

The wife sought permission to appeal against an order of Her Honour Judge Newton dated 25 October 2012, which set aside a decree nisi in divorce proceedings because the English court lacked jurisdiction. She argued that the husband was habitually resident in England under Article 3.1 of Council Regulation (EC) No 2201/2003. The parties had lived together and maintained their matrimonial home in Spain, although the husband had UK assets, income and other connections. The wife also challenged the costs orders. The central issues were whether the judge had applied the correct approach to habitual residence and whether there was a realistic prospect of challenging the evaluative conclusions and costs discretion on appeal.

1. Application refused. Permission to appeal was refused in relation to the jurisdiction decision and both costs issues.
2. Habitual residence under Article 3.1 of Council Regulation (EC) No 2201/2003 has an autonomous meaning. The relevant approach is to identify the place where the person has established, on a fixed basis, the permanent or habitual centre of their interests, taking all relevant factors into account. Judge Newton had correctly stated that approach.
3. The challenge to the jurisdiction decision concerned the weight given to the factors, rather than any error of law. Judge Newton had considered the factors relied upon by the wife, including the husband’s UK business interests, pensions, assets, taxation and use of a UK address, together with the factors pointing to Spain. Those included the length of residence in Spain, the absence of a home and personal possessions in England, the matrimonial home in Spain, limited visits to England, Spanish residency and the husband’s affairs and plans. There was no real prospect of showing that the judge had approached the factors incorrectly.
4. The costs order concerning the divorce petition fell within the judge’s discretion. Although the husband had challenged jurisdiction late, the wife had not properly pleaded jurisdiction and the husband had succeeded in setting aside the decree nisi.
5. The order concerning ancillary relief costs, which in substance left each party to bear their own costs, also disclosed no arguable basis for appellate intervention.

• Court of Appeal (Civil Division): Permission to appeal refused. The order of Her Honour Judge Newton setting aside the decree nisi for want of jurisdiction, and the associated costs decisions, was left undisturbed.