Kelly v Pyres

A domicile of choice requires both residence in the country concerned and a fixed intention to reside there permanently or for an indefinite future. The two elements must coexist. A later intention to retire to the country does not retrospectively supply the necessary intention during an earlier period of residence. Residence may be short, but clear, cogent and compelling evidence is required, particularly where the domicile of origin is being displaced. A person who works abroad may acquire a domicile of choice in England, but only where the whole evidence shows that England is genuinely treated as home, rather than merely as a fiscal, administrative or medical base.

The wife, whose domicile of origin was Ireland, petitioned for divorce in England on the basis that she was domiciled there. She had lived in England for about 18 months as a postgraduate student and for about 11 months on a time-limited employment contract. She subsequently pursued a career abroad but maintained practical, fiscal and medical connections with England.

Mr Justice Cobb found that she had acquired a domicile of choice in England and Wales, from 2000 at the latest, and made an order permitting her divorce proceedings to continue under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and article 7 of EU Regulation 2201 of 2003. The husband appealed, challenging the application of the residence-and-intention test. The central issue was whether the wife had acquired a domicile of choice during either period of residence in England.

1. Appeal allowed and respondent’s notice dismissed. The wife was not domiciled in England for the purposes of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and article 7 of EU Regulation 2201 of 2003.
2. A domicile of choice is acquired only through the combination of residence and an intention to reside permanently or for an indefinite time. Residence without that intention, or intention formed without residence, is insufficient. The intention must be fixed and must be concordant with residence.
3. The judge erred in treating the period from 1995 to 2000 as a continuum. The wife had not been found to possess the necessary intention while resident in England from 1995 to 1997, and a domicile could not be acquired between her departure in March 1997 and 2000 when she was not resident there.
4. The second period of residence, from late 2001 to November 2002, could in principle have been long enough to satisfy the residence requirement. However, the judge had not separately assessed whether the required intention coexisted with that residence. On the unchallenged findings, the wife came on a fixed-term contract, sought overseas employment within four months, left for that employment, and had not returned to live in England.
5. A person working abroad can acquire an English domicile of choice. The question requires careful consideration of all the facts. The evidence would ordinarily need to show that England was truly home and that the person regarded themselves as living in England but working abroad. The wife’s fiscal and medical links, together with a stated intention to retire in England decades later, did not establish that conclusion or displace her Irish domicile of origin.

Lady Justice King gave the judgment, with Lord Justice Newey and Mr Justice MacDonald agreeing. The court applied the principles in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 and Agulian v Gyganik [2006] EWCA Civ 129.

• Court of Appeal (Civil Division) — Appeal allowed and respondent’s notice dismissed. The finding that the wife was domiciled in England and Wales was set aside: [2018] EWCA Civ 1368.
• High Court of Justice (Family Division) — Mr Justice Cobb found that the wife had acquired a domicile of choice in England and Wales and permitted the divorce proceedings to proceed under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and article 7 of EU Regulation 2201 of 2003: [2017] EWHC 449 (Fam).