Divall v Divall

A domicile of choice is acquired only through physical presence combined with an intention to reside permanently or indefinitely. A domicile of origin is more adhesive and requires clear evidence of change. A domicile of choice is abandoned when both residence and the intention to reside permanently or indefinitely are given up; a positive intention never to return is unnecessary. The court must assess the whole evidence retrospectively, treating statements of intention cautiously and testing them against conduct. On the facts, the respondent had no continuing intention to reside in England and Wales when the divorce petition was issued, so the English court lacked jurisdiction.

The husband issued a divorce petition in England and Wales, relying initially on Article 3(1) of Council Regulation (EC) No 2201/2003 and later on the parties’ alleged domicile in England and Wales. The wife disputed jurisdiction, and the Dutch court stayed her later petition pending determination of the English jurisdiction issue.

The husband was domiciled in England by origin. The central issue was whether the wife, born in China, had acquired and retained a domicile of choice in England despite the family’s permanent move to the Netherlands in 2008.

1. Jurisdiction. The Netherlands had jurisdiction under Council Regulation (EC) No 2201/2003 because both spouses were habitually resident there. The English court could therefore entertain the divorce only if both spouses were domiciled in England and Wales when the petition was issued.
2. General principles. Domicile of choice requires physical presence and an intention to reside permanently or indefinitely. The intention must be assessed from all the circumstances, including the reason for residence and whether it was freely chosen. A domicile of origin is particularly adhesive, and clear evidence is required before finding that it has been displaced.
3. Abandonment. A domicile of choice is abandoned when the person ceases both to reside in the country and to intend to reside there permanently or indefinitely. It is unnecessary to prove a positive intention never to return; absence of an intention to continue residing there is sufficient. The test for abandonment is less stringent than the test for acquisition.
4. Application. Even assuming that the wife acquired a domicile of choice in England after the marriage, she ceased to reside there in 2008. The move to the Netherlands was intended to be permanent. By May 2012 she had employment, children, family and an established life there, and intended to spend the rest of her life in the Netherlands. Her British citizenship, property interests and bank accounts in England did not establish a continuing English domicile.
5. The court declined to decide whether the wife had ever acquired an English domicile or whether, after leaving England, her domicile was in China or the Netherlands. Those issues were unnecessary to the result. The English divorce petition was dismissed for want of jurisdiction.