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(Family Division; Philip Sapsford QC sitting as a Deputy High Court Judge; 2 September 2005)
The wife was not prevented from asserting a French domicile by her first acknowledgement of service. The content of a petition did not confer jurisdiction, nor did the failure to assert a sustainable jurisdictional basis deprive the court of jurisdiction, if it existed on grounds other than those pleaded. Domicile cannot be acquired or retained by a mere declaration of the parties. In determining whether the wife had acquired a domicile of choice, the question was whether she had formed a positive intention to make a new home in France for an indefinite time. The court held that residence is persuasive from which to infer an intention to remain but does not have effect on its own. The court held there was little other than residence to infer a real connection with France. It had not been proved, even upon a balance of probabilities, with clearness and satisfaction that the wife had formed a fixed and settled intention to abandon her English domicile of origin and settle permanently in France. The standard of proof is not equivalent to criminal law and the position is still summarised by the President, Sir Jocelyn Simon P in Henderson v Henderson  P 77 in that the standard of proof goes beyond a mere balance of probabilities. The less probable an asserted fact, the more cogent is the evidence needed to prove it.
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