AJ v DM

Habitual residence for family-jurisdiction purposes requires permanence or stability, a centre of interests in the territory, and the loss of any former habitual residence. Context is important. In family proceedings, the matrimonial home and the place where the family lives are significant factors. Habitual residence may arise quickly after a planned, purposeful and permanent relocation, but a decision made during a holiday, without arrangements for a new life, will not ordinarily establish it within a few days. A wrongful retention may eventually affect habitual residence, but the court will assess the circumstances and timing carefully. Jurisdiction cannot be created by convenience or agreement where the statutory or regulatory conditions are absent.

The wife sought to amend her divorce petition so that jurisdiction was based on the parties’ last habitual residence in England and Wales. She also sought financial remedies in England and brought proceedings under Schedule 1 of the Children Act 1989. The husband applied to stay the English financial proceedings. The parties had lived with their child in St Lucia from March 2017, returning to England in April 2018 on an agreed holiday. The wife decided during that holiday not to return and issued her petition four days later. The central issue was whether she had become habitually resident in England and Wales by the date of issue.

1. Amendment and divorce jurisdiction. The application to amend the divorce petition was refused. The parties had last been habitually resident in St Lucia, not England and Wales. The wife’s stay in England began as a holiday, with return tickets, belongings and arrangements for the child remaining in St Lucia. Her decision not to return was made during the holiday and did not amount to a planned, purposeful and permanent relocation.
2. Habitual residence. The court applied the three-part approach stated in Tan v Choy: permanence or stability, a centre of interests, and the absence of another habitual residence. The family home, family life, the husband’s employment, childcare arrangements and the expected duration of the stay in St Lucia strongly pointed to St Lucia. Earlier connections with England and the wife’s unhappiness in St Lucia did not outweigh those factors.
3. The court accepted that habitual residence can change in a day where there has been substantial pre-planning and a purposeful permanent move, as illustrated by Marinos v Marinos. That reasoning did not assist the wife because there had been no preparation for a new life in England. Although wrongful retention can eventually contribute to a change of habitual residence, four days was insufficient on these facts.
4. There was consequently no jurisdictional basis for a needs-based maintenance order in the English divorce proceedings. The wife retained an entitlement-based claim, but her substantive needs claim could be pursued in Australia. The husband’s undertaking secured pound-for-pound funding of her litigation costs in Australia and St Lucia.
5. The application under Schedule 1 of the Children Act 1989 was stayed rather than dismissed. The court had not made a concluded finding on habitual residence for those proceedings, and the application could be restored if the wife obtained permission to remove the child and returned to England.