J v U; U v J (No.2) (Domicile)

A domicile of choice requires residence in a country together with an intention to reside there permanently or indefinitely. The court must assess the whole factual picture. No single circumstance is decisive, and statements of intention require cautious evaluation and corroboration. A domicile of choice is lost only when residence and the intention of permanent or indefinite residence both cease; the domicile of origin then revives unless another domicile is acquired. For forum non conveniens, a stay requires proof of another available court with competent jurisdiction that is clearly or distinctly more appropriate, together with consideration of whether refusing an English trial would be unjust.

The petitioner sought a divorce in England, relying on her alleged domicile in England under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. The respondent contested jurisdiction, denied that either party was domiciled in England, and sought a stay in favour of Sarajevo. The petitioner abandoned reliance on habitual residence. The court therefore determined whether either party had acquired and retained an English domicile of choice and, if so, whether Sarajevo was clearly or distinctly the more appropriate forum.

Jurisdiction and domicile. The petitioner’s domicile of origin was Ireland and the respondent’s was India. Applying the principles summarised from Dicey and the authorities, the court assessed residence, intention, practical and financial connections, medical and fiscal links, property, family connections and the parties’ evidence as a whole.

1. The petitioner had lived in England for periods sufficient to qualify as residence. From 2000 at the latest, London became her base, adopted home and centre of gravity. Her continuing practical, financial and fiscal links with England, use of a London address, National Insurance contributions, pension arrangements and return to England for significant medical treatment outweighed the factors pointing elsewhere. She had acquired and retained a domicile of choice in England and Wales.
2. The respondent had probably acquired an English domicile of choice during his earlier adult life, but had subsequently ceased to regard England as his permanent home. His domicile of choice was abandoned and his domicile of origin in India revived. The petitioner was therefore domiciled in England, but the respondent was not.
3. The court applied the Spiliada test. The respondent bore the burden of showing an available forum with competent jurisdiction that was clearly or distinctly more appropriate than England. Sarajevo had connections with the parties and children, but the petitioner no longer lived there, the respondent’s immigration position was precarious, the principal assets were outside Bosnia, and Sarajevo’s jurisdiction over foreign matrimonial property was limited and potentially dependent on consent. The respondent failed to establish that Sarajevo was the more suitable forum or that justice required a stay.

The divorce petition and ancillary financial remedy proceedings were to proceed in England.

This was a first-instance determination. The judgment records that an earlier application under the Children Act 1989 had been dismissed in [2016] EWHC 2481 (Fam), but that decision was not an appeal in the present proceedings.