08 March 2017
Judgment regarding the domiciles of the parties and whether England was the appropriate forum for the proceedings
- The husband was born in India and moved to England in 1957. His father became a naturalised British citizen when he was 15 in 1960. The wife was born in England to Irish parents, and moved to Ireland when she was 7 months old.
- The parties married in Italy in 2005 and had two children.
- Both parties worked as diplomats and therefore they spent most of their married life together outside of England.
- The wife issued a divorce petition in England on the 28th July 2015. In September 2015, the husband filed in Bosnia and in December 2015 he applied for the wife’s petition to be dismissed. The husband’s petition was dismissed on the basis of the wife’s diplomatic immunity. Directions for trial on the wife’s petition were given by the English court.
- When the wife moved to Serbia, the husband issued another petition in Bosnia.
- By the time of the hearing, the issues were as follows:
- Whether either party acquired a domicile of choice in England and whether that domicile subsists;
- If either party had domicile in England, whether England was an inappropriate forum for the proceedings
- Due to the complexity of the factual scenario, Cobb J had to review the relationship as a whole. He was influenced by the parties’ casual regard for formal documents and the husband’s “less than forthcoming” behaviour.
- Although the wife did not live in England for long, when she did she was not passing through. An extended length of residence is not a strict requirement for the establishing of domicile. She maintained strong practical, financial and fiscal links with the UK throughout her multiple postings; she viewed it as her permanent home. She acquired a domicile of choice in England and Wales from 2000 that was not subsequently lost.
- The husband may have acquired a domicile of choice in England at one point, but he no longer saw England as his home. While he had an emotional investment in Italy and Bosnia, these were not strong enough to acquire domicile, and therefore his domicile of origin in India was revived.
- The English Court has power to stay proceedings on the ground that England is an inappropriate forum if the husband can show that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action, and that there are not circumstance which would mean justice nevertheless required that a stay should not be granted. This would include the wife not being able to obtain justice in the foreign jurisdiction (although the burden would be on the wife to demonstrate this).
- The burden was on the husband to demonstrate that matters may be tried more suitably for the interests of all the parties and the ends of justice in Bosnia. He failed to demonstrate this and the proceedings continued in the English Court.