Ray v Sekhri

A domicile of choice is acquired through residence coupled with a fixed intention to reside permanently or indefinitely. A domicile of choice is abandoned only when the person both ceases residence and ceases that intention. Findings on domicile, particularly where based on oral evidence and inferences, attract considerable respect on appeal. Intervention is required only where the conclusion is plainly wrong and outside the range of reasonable disagreement. A trial judge need not list every evidential point, provided the judgment identifies the prominent and potentially determinative features. An earlier date may be used to take stock, but domicile must ultimately be assessed at the legally relevant date.

The wife issued a divorce petition in England and Wales on 20 August 2012. The husband argued that neither party was domiciled in the jurisdiction. Holman J held that the husband’s domicile of origin was English because his father had acquired an English domicile of choice, and that the wife had acquired and retained an English domicile of choice despite the parties’ move to Singapore. The husband appealed those findings and, depending on the result, sought to challenge costs orders relating to maintenance pending suit. The central issues were whether the judge had applied the law correctly to the evidence, whether he had wrongly focused on December 2008 in assessing the wife’s domicile, and whether her English domicile had been abandoned.

1. Appeal dismissed. The Court of Appeal upheld Holman J’s determinations that the husband was domiciled in England and Wales through his English domicile of origin and that the wife remained domiciled there when her divorce petition was issued. The proposed costs appeal did not arise.
2. Jurisdiction was governed by Domicile and Matrimonial Proceedings Act 1973, s 5 (2). The court adopted the established principles summarised in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77. A domicile of choice requires residence combined with a fixed intention to reside permanently or indefinitely. The court may consider all evidence of residence and intention, including the purpose and circumstances of the residence. Abandonment requires both cessation of residence and cessation of the intention to reside permanently or indefinitely.
3. The judge was entitled to find that Bikas Ray had settled in England by July 1971. His continuing wish to return to India was a distant and indefinite possibility which did not prevent the acquisition of an English domicile of choice. The husband therefore had an English domicile of origin. The court did not need to consider the alternative domicile arguments.
4. The judge was also entitled to use December 2008 as a point at which to take stock, provided that August 2012 remained the legally relevant date. His consideration of the post-2008 evidence was full and did not improperly reverse the burden of proof. The wife’s oral evidence, supported by limited documentary material and her continuing career plans, entitled the judge to find that the move to Singapore was temporary and that she had not abandoned her English domicile.
5. The appellate approach was supported by Agulian v Cyganik [2006] EWCA Civ 129 and Cook v Thomas and Thomas [2010] EWCA Civ 227. An appellate court must allow for the trial judge’s advantages in assessing witnesses and should not interfere with a reasonable inference. It must intervene if the conclusion is plainly wrong and outside reasonable disagreement. A judge need not list every evidential detail where the judgment identifies the contours and prominent features of the case.
6. The court added that a possible return to another country after a spouse’s death may or may not prevent acquisition of a domicile of choice. A vague contingency may be ignored, while a clearly foreseen and reasonably anticipated contingency may matter. The effect depends on the facts.

1. Court of Appeal (Civil Division): Dismissed the husband’s appeal and upheld the determinations below.
2. High Court, Family Division: Holman J, in [2013] EWHC 2290 (Fam), held that both parties were domiciled in England and Wales for the relevant purposes.