Tan v Choy

For jurisdiction under the fifth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003, habitual residence requires permanence or stability, the centre of the person’s interests and the absence of another habitual residence. Where those characteristics existed throughout the year preceding the application, jurisdiction is established regardless of competing constructions of the requirement that the applicant have resided there for that period.

A reference to the Court of Justice is unnecessary where the answer to a disputed question of interpretation cannot affect the judgment. A stay of matrimonial proceedings requires existing foreign matrimonial proceedings and a balance of fairness and convenience favouring their prior disposal. The availability and relative appropriateness of the foreign forum are material considerations.

The husband commenced divorce and associated financial proceedings in England and Wales. The wife wished to litigate in Malaysia and disputed English jurisdiction. HHJ Horowitz QC found that the husband was habitually resident in England and Wales throughout the year preceding his petition. He also refused a reference to the Court of Justice of the European Union, declined to stay the English proceedings and ordered the wife to pay £100,000 on account of costs.

The wife appealed. The central issues were whether the judge had wrongly evaluated habitual residence under Article 3(1)(a) of Council Regulation (EC) No 2201/2003, whether a preliminary reference was necessary, whether the proceedings should have been stayed in favour of Malaysia, and whether the payment on account of costs was wrong.

1. Appeal dismissed on all issues. The accepted meaning of habitual residence required permanence or stability, the centre of the person’s interests and the absence of another habitual residence. The first-instance judge applied that approach and was entitled to find that the husband was habitually resident in England and Wales throughout the relevant year. The competing constructions of the fifth indent of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 were therefore immaterial, because jurisdiction existed on any of them.

2. An appellate court asks whether the first-instance judge’s evaluation of the facts was wrong. An assessment of habitual residence depends closely on primary facts and the judge’s evaluation of the witness claiming a stable and exclusive centre of interests. The trial judge had the advantage of hearing the witnesses and observing the evidence unfold. No factual mistake, material omission or other error displaced his evaluation.

3. A reference under Article 267 of the Treaty on the Functioning of the European Union 2008 is appropriate only where a ruling on interpretation is necessary to enable the domestic court to give judgment. The factual finding that the husband had been habitually resident throughout the relevant year made the unresolved construction issue immaterial. The refusal to refer was therefore correct.

4. The court retained power under section 5(6) and Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 to stay the matrimonial proceedings. A stay required both foreign proceedings concerning the marriage and a balance of fairness, including convenience, making it appropriate for those proceedings to be disposed of first. Whether another forum was available and clearly more appropriate formed an important part of that assessment. The judge considered the possible jurisdictional obstacle in Malaysia and the other relevant connections and inconvenience. His refusal of a stay disclosed no legal error and was neither irrational nor plainly wrong.

5. The order requiring £100,000 on account of costs to be paid from the proceeds of the parties’ wine was discretionary. It was not demonstrably, irrationally or plainly wrong. The stay of paragraphs 1–7 of the order of 12 March 2013 was lifted, with written submissions directed on the costs of the appeal.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 251, dismissed the wife’s appeal on jurisdiction, the refusal of a preliminary reference, the refusal of a stay and the payment on account of costs.

2. Principal Registry (Family Division): HHJ Horowitz QC, sitting as a High Court judge, dismissed the wife’s applications for a reference to the Court of Justice, dismissal or a stay of the husband’s petition. He found the husband habitually resident in England and Wales, held England and Wales to be the appropriate forum, and ordered £100,000 on account of costs.