Court of Appeal overturns dismissal of English proceedings in cross-border divorce case.
Background Facts
- The wife and her husband, both of Mauritian heritage, married in 2003 and lived in England with their two children.
- In September 2019, the family relocated to Mauritius for financial reasons. The marriage broke down the following year.
- The wife remained in Mauritius with the children until October 2022, when they returned to England. Shortly afterwards, the wife issued divorce proceedings in England, relying on her alleged English domicile.
- Meanwhile, the husband brought proceedings in Mauritius, including divorce and child abduction claims.
- At first instance, the court found that the wife had acquired a domicile of choice in England by 2016, but that this was lost when the family moved to Mauritius in 2019. On that basis, it dismissed the English proceedings for lack of jurisdiction.
Submissions of the Parties
- The wife argued that the lower court failed to address whether she had in fact lost her English domicile of choice and wrongly placed the burden of proof on her. She argued that her return in 2022 showed a continuing intention to make England her permanent home.
- The husband agreed with the lower court that the wife’s domicile of choice was lost in 2019 and stressed that the family had no plans to return to England when they were living in Mauritius.
The Court of Appeal’s Decision
- The Court of Appeal held that the judge had wrongly limited the analysis to events up to 2019, failing to consider the wife’s return to England in 2022 and her ongoing residence since.
- It reaffirmed that domicile must be assessed through a ‘global evaluation’ of all relevant facts, including post-departure conduct.
- Crucially, it found that the burden of proof had been misapplied. Once domicile is established, the burden lies with the other party to prove it has been lost.
- The Court also confirmed that uncertainty about future plans does not preclude a finding of domicile, as intentions can evolve subject to contingencies.
- The appeal was therefore allowed, the dismissal set aside, and the case remitted for a rehearing. The rehearing will need to determine whether the wife lost her English domicile of choice before October 2022, and will reconsider the husband’s application for a stay of proceedings.
Commentary
The decision clarifies two key principles in relation to the law of domicile in divorce proceedings. Firstly, once domicile of choice is acquired, the onus is on the other party to show that it has been lost. And secondly, the courts must conduct a holistic evaluation of all the relevant facts in order to determine jurisdiction, taking into account conduct and intentions after leaving or returning to a jurisdiction.
For families with cross-border ties, this decision underlines the complexity of domicile arguments and the importance of evidence showing intention and residence.
If you have any queries regarding domicile, divorce jurisdiction or any other aspects of family law, please contact Lindsay Davies at [email protected].
