DIVORCE: F v F (Divorce: Jurisdiction) [2009] EWHC 1448 (Fam)

25 JUN 2009

(Family Division; Sir Mark Potter P; 25 June 2009)

The husband and wife were both Libyan by birth. For political reasons they moved to England, intending to settle there, but within a few months, feeling unsafe, they moved to Egypt. However, as a Libyan the husband was unable to work or run a business in Egypt, and the family were able to remain there only on temporary visas. Two of the couple's children moved back to Europe, eventually choosing England as a base. After 10 years in Egypt the whole family obtained asylum in England, purchased a home in England, and eventually became naturalised British citizens. Thereafter, however, both husband and wife continued to spend considerable periods in Egypt; the wife was based in Egypt for a considerable period when one of the children was taken there for health reasons. The wife issued divorce proceedings in England at a time when she was dividing her time between Egypt, England and Northern Ireland. The husband issued divorce proceedings in Egypt. The husband argued that the English court did not have jurisdiction to entertain the wife's divorce petition, which was based on either habitual residence or domicile. In the alternative the husband sought a stay of the English proceedings pending the outcome of the Egyptian proceedings. The judge decided that the wife had not been habitually resident in England for some years, but accepted that England was the wife's domicile of choice, and that this founded jurisdiction in the English court. The husband appealed.

The wife's case on domicile had been proved; the move to England had involved the acquisition of a domicile of choice in England and the wife's long term desire and intention had since then been to remain based in England, albeit that the needs of the children might take her elsewhere on a temporary basis. Although the wife's case as to the extent and duration of her time spent in England as originally advanced had been inaccurate and exaggerated, and she had not satisfied the court that she had been resident in England for at least a year prior to the filing of the petition, the wife had established that she had been physically resident in the UK for some 4 months prior to the filing of her petition, and that she had remained so since. Although the wife had not satisfied the requirement of 6 months of residence prior to the petition, no court of any member state of the EU had jurisdiction under Brussels II Revised, and therefore the English court had jurisdiction by the domicile route. So far as the application for a stay was concerned, the husband had not even established that the Egyptian court had jurisdiction to hear his divorce proceedings, and his application for a stay would be rejected.

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