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(Family Division; Ryder J; 25 June 2009)
The wife was an Australian, currently living in Australia; the husband was English, currently based in France, where he worked. After the separation, the husband issued and served proceedings for financial relief arising out of the marriage; the wife took a full part in that process, acting in person.
Some months later, the wife issued a divorce petition in England, basing jurisdiction on the husband's domicile of origin in England. The process was sent to the husband's Australian solicitors, who did not accept service or return the acknowledgement of service form. The wife's English solicitors told the Australian solicitors that they would seek an order for substituted service. The Australian solicitors responded with the assertion that the husband had abandoned his domicile of origin, and had adopted Australia as his domicile of choice. However, despite requests, no documentary evidence was forthcoming. The husband then sent a letter to the Principal Registry, setting out in terms that the husband did not submit to the jurisdiction, his reasons, and his contention that the English process should not be pursued. The wife applied for substituted service; the court had a copy of the husband's letter available to it, but chose to make an order for substituted service in any event, with directions for trial under the special procedure. Five days later, the court granted the wife a certificate under the special procedure, confirming that the court was satisfied that the wife had sufficiently proved the contents of the divorce petition and was entitled to a decree.
Meanwhile, the husband had petitioned the Australian court for divorce; following the grant of the certificate, the Australian court made an order prohibiting the wife from proceeding with the English petition. In England the wife applied for pronouncement of decree nisi; the husband applied for permission to apply out of time to set aside both the directions for trial under the special procedure and the certificate, and for the wife's petition to be dismissed for want of jurisdiction, or, if not, stayed.
The authorities made it clear that once a certificate had been granted under the special procedure, the subsequent pronouncement of decree nisi was no more than a formality.
The husband had engaged in a course of conduct to avoid accepting service of the English process. Further, the letter to the court had been a ruse, in that it set out a clear position, but failed to do what was required to comply with the English procedure, or indeed to do what the husband's Australian solicitor had agreed to do, that is there had been no agreement to accept service, the acknowledgement of service form had not been returned, and there had been no documentary material to support the husband's contention as to domicile. From the husband's clear course of conduct, and his inactivity in the English jurisdiction, the court inferred that the husband's tactic had been to frustrate the wife's claim to English jurisdiction not by an argument on the merits but by delay and by failing to defend. The husband had not been deprived of an opportunity to file an acknowledgement of service or to defend; that was a choice he had made. He had not been penalised by the time periods within which he had to act. He had acted tactically to avoid the jurisdiction of the English court, whereas the wife had given him a proper opportunity on more than one occasion to engage with the process. Given that the husband knew about the proceedings, and had chosen to try to avoid them, he needed to establish on the evidence before the court, on the application as a whole, that it was more probable than not that the certificate was obtained contrary to the justice of the case, that is that it was more probable than not that his domicile argument would succeed.
The court could not say that the wife's case as to domicile of origin was flawed and that justice could not be done. There was no clear and cogent evidence of a change of domicile. The husband did not even currently live in Australia. His address for tax purposes was his parents' home in England. He had not declared himself to be domiciled in Australia on Australian family application forms, but had instead claimed to be ordinarily resident there. He had twice given up an attempt to become an Australian citizen.
The husband's applications were dismissed, the decree nisi was pronounced; the husband was to pay the wife's costs.
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