Key Facts
- •Jurisdiction dispute concerning a divorce application.
- •Wife (W) filed for divorce in England and Wales; Husband (H) filed in a European Country.
- •W's domicile of origin is Russia; she claims to have acquired a domicile of choice in England and Wales.
- •Parties lived in various countries, including China, Russia, the European Country, and England, primarily for the children's education.
- •The parties' main home and most of their assets are located in the European Country.
- •W initiated domestic abuse proceedings and a child custody dispute in the European Country.
- •W's divorce petition in England was issued on 13 December 2023.
Legal Principles
Jurisdiction in divorce cases in England and Wales is determined by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.
Domicile and Matrimonial Proceedings Act 1973, section 5(2)
A domicile of origin can only be replaced by clear, cogent, and compelling evidence of an intention to settle permanently or indefinitely in the alleged domicile of choice.
Cyganik v Agulian [2006] EWCA Civ 129
In determining domicile of choice, the court considers residence, intention to reside permanently or indefinitely, and various factors such as motives for residence, whether residence was freely chosen, and whether it was precarious.
Barlow Clowes International Ltd & ors v Peter Stephen William Henwood [2008] EWCA Civ 577; Kelly v Pyres [2018] EWCA Civ 1368; Divall v Divall [2014] 2 FLR 1104
Under section 5(6) of the Domicile and Matrimonial Proceedings Act 1973 and Schedule 1, paragraph 9, English proceedings may be stayed if the court finds it appropriate due to fairness and convenience, considering all relevant factors.
Domicile and Matrimonial Proceedings Act 1973, section 5(6); Schedule 1, paragraph 9
Outcomes
The Wife's divorce petition in England was dismissed.
The judge found that the Wife had not demonstrated the necessary permanence to acquire a domicile of choice in England and Wales as of the date of her application. The court also determined that the European Country was the forum conveniens.
The English proceedings were deemed to be stayed (implicitly).
The European Country was considered the more appropriate forum due to the stronger connection between the parties and their assets to that jurisdiction. The court highlighted various factors indicating a closer connection to the European Country, including the location of the family home and most assets, previous court proceedings in the European Country, and the parties' tax residency.