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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mark v Mark  EWCA Civ 168 (19 February 2004)
Cite as:  3 WLR 641,  EWCA Civ 168,  Fam 267
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
MR JUSTICE HUGHES
London WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE LATHAM
| DAVID ALECHENU BONAVENTURE MARK
|- and -
|VICTORIA PREYE MARK
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
CHIMA UMEZURUIKE and ADEDAMOLA ADEREMI (instructed by Messrs Osibanjo Ete & Co of London SE5 8QZ) appeared for the respondent.
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage - (a) is domiciled in England or Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date"
The section has since been amended to reflect the provisions of the council regulation Brussels II (1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses) which came into force on the 1st March 2001. In its amended form, Section 5(2) now reads:-
"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) (a) the court has jurisdiction under the Council Regulation: or (b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun"
The History of the Families
The Immigration History
"Although she had taken her own advice in 1996, he had otherwise been responsible for travel documents. It was he who had obtained the Belizean passports. The wife's leave to remain was, as he knew perfectly well, based on his, because she was dependent upon him. Since however he did nothing to include her, and since on her return she did nothing either, it came about that after 30th April 1998 she had no leave to remain and her status, unlike all the rest of the family, was that of an overstayer."
"Unfortunately I cannot advise any positive outcome and would need confirmation and help from (the husband) to proceed"
The History of the Proceedings
"Accordingly I do not rule out the very real possibility that the husband is not truthful about this, with the consequence that a Nigerian court official has been induced to be untruthful also."
The Issues for Determination on the Appeal
i) Was Hughes J right in law to hold that the wife had not been habitually resident in this jurisdiction throughout the twelve months immediately preceding the presentation of her petition on the grounds that throughout that period she was an overstayer? This issue is raised by the wife's respondent's notice.
ii) Was Hughes J right in law to hold that the wife had a domicile of choice in this jurisdiction on 17th June 2000 despite the fact that on, and for some time before, that date she was an overstayer. This is the sole question raised by the husband's Appeal.
iii) Did Hughes J misdirect himself in law in concluding that the husband was not habitually resident in this jurisdiction throughout the twelve months immediately preceding the presentation of the wife's petition. This question is also raised by the wife's respondent's notice.
"Unless, therefore, it can be shown that the statutory framework for the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settle purposes as part of the regular order of his life for the time being, whether or short or of long duration.
There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence, (even though in a tax case the Crown may be able to do so): in re Abdul Mannan (1971) 1 WLR 859 and Reg. v Secretary of State for the Home Department, Ex parte Margueritte (1982) 3 WLR 753, C.A. There is, indeed, express provision to this effect in the Act of 1971, Section 33(2). But, even without this guidance, I would conclude that it was wrong in principal that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."
i) the wife had abandoned her domicile of origin in the summer of 1999 and had remained in England with the intention of making England her exclusive permanent home.
ii) The matrimonial home in Kingston was her only home, since the home she had owned in Port Harcourt had effectively been made over to her brother.
iii) She owned three investment properties in London. Her children were all in this jurisdiction with the advantage of indefinite leave to remain. She had made her own attempts, albeit ineffective, to obtain permanent leave in 1998, 1999 and 2000.
iv) Everything pointed to her having acquired an English domicile of choice about a year before the presentation of her petition. The court therefore clearly had jurisdiction to entertain her petition, unless as a matter of law her immigration status operated to prevent her acquiring that domicile.
"It has been held a domicile of choice cannot be acquired by illegal residents. The reason for this rule is that the court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers. Thus a person who is illegally resident in (for example) South Africa would not be regarded by the courts of that country as domiciled there. In the same way it is submitted that a person who is illegally resident in this country could not thereby acquire an English domicile of choice."
"However that may be, the general considerations set out above lead me to conclude that the decision in Jablonowski v Jablonowski is to be preferred to those in Solomon v Solomon and Smith v Smith. It follow that I hold that (the wife) was, on 17th July 2000, domiciled in England and Wales."
"The question whether the habitual residence is established is plainly not simply a matter of counting days, but rather of evaluating the nature and extent of the residence. It seems to me, however, that I am constrained by that decision, and by the clear views of both Lord Justices that habitual residence was only barely established in that case, to reach the conclusion that stays totalling not quite fifty days in a twelve month period (or a seventh of the total year) cannot be enough to reach beyond the token level to what is needed to establish that the husband was habitually resident in England and Wales."
"Illegal entry and residence would clearly make the court hostile to an assertion that the illegal immigrant had thereby acquired a domicile of choice, but the court might take a different view, for example, where the time factor since the entry was considerable, or where possibly the immigrant genuinely did not appreciate that his entry was illegal."
In the footnote to that passage the author cites the stronger proposition in Dicey's 9th Edition and continues, "there may be cases where there is no avowed 'defiance'," and, as suggested in the text, the passage of time may prevail over the factor of the original illegal entry. Other matters may also arise "
"Illegal entry and residence would clearly make the court hostile to an assertion that the illegal immigrant had thereby acquired a domicile of choice: indeed it has been authoritatively stated that it is wrong in principal that a man could rely on his own unlawful act to secure an advantage which would have been obtained if he had acted lawfully."
In the footnotes the author refers to the speech of Lord Scarman in re: Shah and the earlier authorities there cited.
Conclusions: The Wife's Habitual Residence
"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provisions of this Act as ordinary resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the Immigrations laws."
(i) The wife was not originally an illegal immigrant. She became an overstayer. Her illegality is the product partly of the husband's conduct or design and partly as the result of her almost childish irresponsibility.
(ii) Following what maybe the husband's desertion in late 1988 or early 1999 London has been her only home. Apart from holidays and study trips she has lived nowhere else since at least 1993. Her children are all here, as is the bulk of her husband's fortune.
(iii) Although she has access to the customary courts in Nigeria her future financial independence can only be established by the courts of this jurisdiction. As Hughes J held in his judgment of the 14th March 2002:-
"For these reasons it is quite clear to me that England is the appropriate forum and indeed the only realistic forum for any financial proceedings."
The customary court in Nigeria has no jurisdiction to make ancillary relief orders.
(iv) The court's primary jurisdiction to determine financial rights and responsibilities arises on or after the pronouncement of the divorce. A right to apply under Part III of the Matrimonial and Family Proceedings Act  is not comparable because it is subject to a permission filter. Furthermore the court's jurisdiction would also be open to challenge.
(a) the husband invited the wife to petition in London
(b) the husband in his pleadings prior to March 2002 admitted the court's jurisdiction
(c) there have been extensive proceedings under Part IV of the Family Law Act, in which the husband has established his right to the continuing use of the formal matrimonial home.
(d) the ancillary relief proceedings are well under way with evidence not only from the parties but also from the trustees of the relevant foreign trusts:
a rule of public policy that terminated proceedings so far advanced would not only be perverse but incompatible with the wife's rights under Article 6(1).
The Wife's Domicile
As at present formulated, the illegal residence rule may work considerable hardship by separating an individual from the law with which he is in fact most closely connected and which he expects to govern his personal affairs. It is submitted that the rule is essentially one of public policy and forms no part of the traditional criteria for the establishment of a domicile of choice. However, the illegal residence rule has been cast in its present form because in the persuasive authorities upon which it has been based239 there has been a failure to distinguish between statutory and common law domicile and between immigration matters which involve the public domain and matters resting upon domicile which involve private right. Equally persuasive authority in which the distinction has been made and the domicile established240 has been set aside. As a result a hard and fast rule which operates perfectly to give effect to the public interest in matters of political right has been transferred to the field of private right where it would normally be inapplicable. If the present rule that illegal residence automatically vitiates domicile were abandoned and the general principle of public policy upon which it is founded were allowed to operate in the normal way, as a matter of discretion, the public interest could be adequately protected without denying the rights and expectations of the individual concerning the application of his personal law. This would also be analogous to the approach of the English courts to limitations upon status imposed by a foreign domiciliary law, namely to deny the restriction as a matter of public policy but otherwise to apply the domiciliary law. Thus status would be both granted and refused recognition by an English court on grounds which are clearly seen to express public policy and the public interest.
It is hoped that in the future the illegal residence rule laid down in Dicey and Morris will not be applied to deny the acquisition of a domicile of choice without full consideration of the principle and authorities upon which it rests.
239. See the authorities cited by Pollak, op.cit. supra n.28, at p 20, n. 139, and Dicey and Morris, op. cit. supra n.1. at p.111, n.98.
240. Abelheim v. Abelheim  S R. 85; Jablonowski v Jablonowski (1972) 28 D.L.R. (3d) 440. Lim v Lim  V.R. 370 supports the view that a finding of domicile in a matrimonial issue may not affect the question of immigration. Plyler v Doe (1983) 72 L.Ed. 2d 786, 806, n.22."
"There is a significant line of authority that one can obtain a domicile of choice even as an illegal immigrant (see Lim v Lim & Titcumb  VR 370, Salacup v Salacup  FLC 92-431, in re: Marriage of Dick  15 CAL.APP. 4th 44, 18 CAL.RPTR.2d743."
Although Mr Nicholls comments that the decisions in Lim v Lim and Salacup v Salacup involved persons whose presence at the material time was lawful, there can be no doubt that Kay J does not consider Dicey's absolute proposition to run in his jurisdiction.
The Husband's Habitual Residence
"I have no doubt that the husband's residence in England and Wales had been for years, and remained in 1999 2000, part of the regular order of his life. It was part of his routine."
In considering the case of Ikimi v Ikimi Mr Umezuruike stresses that the husband on each occasion he entered the United Kingdom during the relevant twelve month period sought leave to enter on the basis of indefinite leave. In his evidence in the Part IV proceedings he said "I do come to England as often as I can, either on official business as a Senator or on private visits to see my family, the majority of whom are studying here." Further in the financial proceedings he disclosed an earned income in this jurisdiction of £45,000 a year, whilst his Nigerian income as a Senator was but £1,636 per year. His disclosure demonstrated that he operated his English bank accounts throughout the period. His sixth wife and their children lived exclusively in a house provided by him in London. Although the husband had only forty-seven days in totality within the relevant twelve months he had made nine arrivals within the jurisdiction. That indicated that his affairs and interests within this jurisdiction necessitated a visit approximately every six weeks. In summary Mr Umezuruike submitted that, whilst Mrs Ikimi could count many more days in England, her connections were much weaker than those of the husband in the present Appeal. The judge insufficiently focused on the quality of the husband's residence. That quality could be compared with the quality of residence of a serving officer whose commission required him to spend most of the year abroad. Here was a clear case of continuous habitual residence in two jurisdictions at the same time.
"True it was that Lord Eldon also had a good house in Hamilton Place, but it could not really have been suggested that he did not use Encombe as his principal or more important residence."
Lord Justice Waller:-
(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage--
(a) is domiciled in England and Wales on the date when the proceedings are begun; or
(b) was habitually resident in England and Wales throughout the period of one year ending with that date.
"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)
(a) the court has jurisdiction under the Council Regulation; or
(b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun."
"1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:-
"(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his "domicile" there:
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, or the "domicile" of both spouses.
2. For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland."
"That intention and residence are matters of fact is, however, just as true when the residence is unlawful as when it is merely precarious. It also seems to me that an intention to remain may genuinely and honestly be held even if the residence is illegal and even if dishonesty has been displayed in the dealings with the immigration authorities, as it had been by Mr Smith in the Rhodesian case. If the suggested rule exists, it must be one based upon public policy and be founded, as Dicey assumes, on the general principle that a person cannot be permitted to acquire a benefit from his own criminal conduct.
That such a principle exists is not in doubt. It underlay the decision in AG v Puttick. It may also be the correct rationalisation that the rule in ex parte Shah and supply the answer to the question as to the extent of the rule, which I have earlier left open. However that may be, the concept of domicile is not that of a benefit to the propositus. Rather, it is a neutral rule of law for determining that system of personal law with which the individual has the appropriate connection, so that it shall govern his personal status and questions relating to him and to his affairs. Although it is a test for jurisdiction, it is also the criterion for choice of law. It governs, inter alia, capacity to marry, the legitimacy of children, and succession after death to moveable property and it is one of the tests of the validity of a Will. To the extent that it is a test for jurisdiction, it may as well be to the disadvantage as to the advantage of the propositus. An estranged and hostile spouse, a dependant claiming provision under the Inheritance (Provision for Family and Dependants) Act, a relative claiming succession to moveables and a child asserting the validity of his parents' marriage are just some of the people who may propound a person's domicile. Yet one cannot in English law have more than one domicile nor a domicile for some purposes and not for others. The application to domicile of the rule of public policy is not consistent with the neutral nature of the concept. There must be a very large number of extremely long standing but unlawful residents in this and other countries whose only real links are with their adopted country and whose personal affairs should properly be governed by the laws of that country, whether to their advantage or disadvantage.
Additionally, special difficulty would be created by the suggested rule where a person's residence was at times lawful and at others illegal, a common enough situation where leave to remain is granted for a limited period and requires renewal or fresh application from time to time. In Lim v Lim  VR 370, the Malaysian respondent had been resident in Australia for more than nine years under a series of permits, but there had been gaps between permits, most short but the last one 8 months long, and during those gaps his residence had been unlawful. The last permit had been granted just 3 weeks before the critical date. Distinguishing Solomon v Solomon, Kaye J held him to have a domicile of choice in Australia and applied the precarious residence cases. It is clear however, that the respondent had resided in Australia with the necessary intention for the whole of the nine years. It would, as it seems to me, be inconsistent with the nature of domicile if the law were to be that his domicile switched from Australia to Malaysia and back again each time his permit ran out and until a fresh one was granted."
Lord Justice Latham
"If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence . I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully,"
""Ordinarily resident" refers to a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."
"The acquisition of a domicile of choice by a person coming from abroad to any country depends then on the permission given by that country to enter it and make it his home."