Chai v Peng

Habitual residence is determined objectively by asking whether the person has established a sufficiently stable and permanent centre of interests in the jurisdiction. Physical presence, quality of residence, reasons for residence, intentions and motives are relevant factual matters. Lawful immigration status is not a prerequisite, although the nature of that status may bear on the factual assessment.

Where concurrent matrimonial proceedings exist, the statutory test is whether the balance of fairness, including convenience, makes it appropriate for the foreign proceedings to be disposed of first. The statutory wording should not be supplemented by an additional requirement that the foreign forum be clearly or distinctly more appropriate.

The petitioner sought to continue divorce and related financial proceedings in England. The respondent disputed English jurisdiction, principally arguing that the petitioner had not been habitually resident in England for the required twelve months and that Malaysia was the preferable forum.

The court considered the petitioner’s residence, intentions, immigration status and connections with England, as well as the parties’ connections with Malaysia and the practical convenience of each forum. The central issues were whether habitual residence had been established and whether the English proceedings should be stayed in favour of Malaysia.

1. Habitual residence. The wife had established habitual residence in England for the twelve months preceding the petition. Habitual residence means the place where a person has established, on a fixed basis, the permanent habitual centre of his or her interests. The test contains a legal definition, but its application is essentially factual. The quality and reasons for residence, together with motives and intentions, must be evaluated objectively against all the evidence.
2. The wife’s visitor status did not prevent her from being habitually resident in England. Following Mark v Mark [2006] 1 AC 98, residence need not be lawful for this purpose. Immigration status may be factually relevant to intention, but it was not decisive here.
3. The evidence, considered in the round, established that the wife’s fixed centre of interests was in England. Her connections with the Rossway estate, the arrangements for her adult son, her community and church connections, and her continuing presence in England outweighed the respondent’s criticisms. The allegations that she had fabricated her residence or manipulated her son were rejected.
4. Forum conveniens. Under section 5(6) and Schedule 1, paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973, the question was whether the balance of fairness, including convenience, made it appropriate for the Malaysian proceedings to be disposed of first. The court was required to take a broad view of all relevant circumstances.
5. The court followed the more recent approach in Butler, applying the statutory test without adding the disputed gloss that Malaysia had to be clearly or distinctly more appropriate. Although Malaysia was an appropriate forum, the respondent had not shown that the statutory balance favoured a stay. The stay application was therefore refused, and the English court retained jurisdiction over the divorce and consequential financial matters.