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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> V v W (Jurisdiction: Dissolution of Pacte Civil de Solidarite) [2024] EWFC 111 (23 May 2024) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2024/111.html Cite as: [2024] EWFC 111 |
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SITTING AT THE ROYAL COURTS OF JUSTICE
B e f o r e :
____________________
V | Applicant |
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- and - |
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W |
Respondent |
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V v W (Jurisdiction: Dissolution of Pacte Civil de Solidarité) |
____________________
Charanjit Batt (instructed by Kingsley Napley LLP) for the Respondent
Hearing dates: 13-14 May 2024
____________________
Crown Copyright ©
Mr Justice Poole:
Introduction
"(1) Two people are to be treated as having formed a civil partnership as a result of having registered an overseas relationship if, under the relevant law, they—
(a) had capacity to enter into the relationship, and
(b) met all requirements necessary to ensure the formal validity of the relationship."
An "overseas relationship" is defined by CPA 2004 s212, whilst CPA 2004 Schedule 20, Part 2 expressly refers to a French PACS as being a relationship that falls within that definition. There is no issue about the conditions of capacity and formal requirements having been met, hence the parties are treated as having formed a civil partnership.
"219 Power to make provision corresponding to EC Regulation 2201/2003 as to jurisdiction in relation to civil partnerships
(1) The Lord Chancellor may by regulations make provision—
(a) as to the jurisdiction of courts in England and Wales in proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners in cases where a civil partner—
(i) is or has been habitually resident in England and Wales, or
. . .
(iii) is domiciled in England and Wales"
"Jurisdiction: England and Wales
4. The courts in England and Wales shall have jurisdiction in relation to proceedings for the dissolution or annulment of a civil partnership or for the legal separation of civil partners where on the date of the application—
(a) both civil partners are habitually resident in England and Wales;
(b) both civil partners were last habitually resident in England and Wales and one of the civil partners continues to reside there;
(c) the respondent is habitually resident in England and Wales;
(ca) in a joint application only, either civil partner is habitually resident in England and Wales;
(d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made...
(e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made or
(f) both civil partners are domiciled in England and Wales."
In the present case it is not suggested that either party is or has been habitually resident in England and Wales for many years not is it contended that both partners are domiciled in England and Wales. Hence, the CP (JRJ)R 2005 made under CPA 2004 s219 do not give the court jurisdiction.
"221 Proceedings for dissolution, separation or nullity order
(1) The court has jurisdiction to entertain proceedings for a dissolution order or a separation order if (and only if)—
(a) the court has jurisdiction under section 219 regulations,
(b) no court has, or is recognised as having, jurisdiction under section 219 regulations and either civil partner is domiciled in England and Wales on the date when the proceedings are begun, or
(c) the following conditions are met—
(i) the two people concerned registered as civil partners of each other in England or Wales,
(ii) no court has, or is recognised as having, jurisdiction under section 219 regulations, and
(iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case."
Hence, by s221(1)(b), no court having or being recognised as having jurisdiction under s219 regulations, if either civil partner is domiciled in England and Wales on the date when proceedings were begun, the Court in England and Wales has jurisdiction to entertain proceedings for a dissolution of the PACS which is to be treated as a civil partnership.
"(3) If the overseas relationship is registered (under the relevant law) as having been entered into before this section comes into force, the time when they are to be treated as having formed a civil partnership is the time when this section comes into force.
(4) But if—
(a) before this section comes into force, a dissolution or annulment of the overseas relationship was obtained outside the United Kingdom, and
(b) the dissolution or annulment would be recognised under Chapter 3 if the overseas relationship had been treated as a civil partnership at the time of the dissolution or annulment,
subsection (3) does not apply and subsections (1) and (2) have effect subject to subsection (5).
(5) The overseas relationship is not to be treated as having been a civil partnership for the purposes of any provisions except—
(a) Schedules 7, 11 and 17 (financial relief in United Kingdom after dissolution or annulment obtained outside the United Kingdom);
(b) such provisions as are specified (with or without modifications) in an order under section 259;
(c) Chapter 3 (so far as necessary for the purposes of paragraphs (a) and (b))."
a. It was accepted that the Applicant's domicile of origin was England and Wales. In principle it would have been open to the Respondent to contend otherwise but she has elected not to do so.
b. The Applicant asserts jurisdiction only on the grounds of his domicile and does not seek to contend that the Respondent is domiciled in this jurisdiction. Again, in principle it would have been open to the Application to contend that jurisdiction was established either by his domicile or the Respondent's domicile, but he elected not to do so.
c. The Applicant does not put forward an alternative case that if, contrary to his primary position, he has previously acquired domicile of choice in France, he has subsequently abandoned it, thereby reverting to his domicile of origin in England.
Legal Framework
"Domicile Law
Domicile is " that legal relationship between a person . . . and a territory subject to a distinctive legal system which invokes the system as [his] personal law ...": see Henderson v. Henderson. It is a combination of residence and intention. It takes two forms - domicile of origin and domicile of choice. A classic description of the concept is to be found in Lord Westbury's speech in Udny v Udny (1869) LR 1 Sc & Div. 441. Two features of his description are of particular importance in the present case. First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time."
"8. The following principles of law, which are derived from Dicey, Morris and Collins on The Conflict of Laws (2006) are not in issue:
(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).
(ii) No person can be without a domicile (Dicey, page 126).
(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).
(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).
(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).
(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138).
(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).
(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151).
(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153).
(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153)."
"10. The intention of residence must be fixed and must be for the indefinite future. It is not enough for instance that at any given point in time its length has not been determined."
Arden LJ illustrated this principle by reference to the leading case of Udny v Udny (1869) LR 1 Sc & D 441, in which, at 458, Lord Westbury made the following observations about the acquisition of a domicile of choice which also emphasise the fixed nature of the requisite intention:
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established"
Arden LJ explained:
"Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days. Thus, in Bell v Kennedy (1868) LR 1 Sc and Div 307, 311, Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term "domicile", held that the question to be considered was in substance whether the appellant:
"had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?" (emphasis added)
15. In my judgment this test by its reference to ending one's days usefully emphasises the need for the subject to have a fixed purpose that he will live in the country of his domicile of choice."
"In the light of these cases, the law, so far as relevant to my task, may be stated as follows: (1) The domicile of origin adheres - unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed 'into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres."
"27a) A domicile of origin is more tenacious: "its character is more enduring, its hold stronger, and less easily shaken off" (Winans v Att-Gen [1904] AC 287). b) If a person leaves the country of his domicile of origin, intending never to return to it, he continues to be domiciled there until he acquires a domicile of choice in another country. However, if a person leaves a country of his domicile of choice, intending never to return to it, he forthwith ceases to be domiciled in that country; and unless and until he acquires a new domicile of choice his domicile of origin revives.
28. Domiciles of origin are notoriously adhesive. Clear evidence of a change is required. The acquisition of a domicile of choice (whether changing from a domicile of origin or of choice) requires physical presence, although it need not be long, plus an intention to remain permanently or indefinitely."
"The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice."
The burden of proof lies on the Respondent who seeks a stay on the basis of forum. The Court should not lightly interfere with the Applicant's right to choose his forum if it has jurisdiction to hear his application.
"The effect is that the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of that inquiry, the court concludes that there is another available forum which, prima facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted: see the Spiliada case [1987] AC 460, 475-478. The same principle is applicable whether or not there are other relevant proceedings already pending in the alternative forum: see The Abidin Daver [1984] A.C. 398, 411, per Lord Diplock. However, the existence of such proceedings may, depending on the circumstances, be relevant to the inquiry. Sometimes they may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process. But if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties."
And at 110B:
The weight to be given to what has been called a "legitimate personal or juridical advantage" was considered by your Lordships' House in the Spiliada case [1987] AC 460, 482-484. The conclusion there reached was that, having regard to the underlying principle, the court should not, as a general rule, be deterred from granting a stay of proceedings simply because the plaintiff in this country will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the appropriate forum overseas. Reference was made, in particular, to cases concerning discovery where, as is well known, there is a spectrum of systems of discovery applicable in various jurisdictions; and the opinion was expressed that, generally speaking, injustice cannot be said to be done if a party is compelled to accept one of these well recognised systems of discovery in another forum. If I follow that approach in the circumstances of the present case, I find that French matrimonial law contains provisions for "compensation" which, unlike our own, place emphasis upon the question whether the breakdown of the marriage was due to the exclusive fault of one of the parties, providing (subject to an important exception) that a party so at fault is deprived of the right to an award of compensation. Such an approach is no longer acceptable in this country, though it bears a close resemblance to the principles applicable here not so very long ago. But it is evidently still acceptable in a highly civilised country with which this country has very close ties of friendship, not least nowadays through our common membership of the European Community; and I find it impossible to conclude that, objectively speaking, justice would not be done if the wife was compelled to pursue her remedy for financial provision under such a regime in the courts of a country which provide, most plainly, the natural forum for the resolution of this matrimonial dispute."
Evidence and the History of Events
Analysis and Conclusions
The Issue of Domicile
"I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is under consideration believes that for reasons of health or otherwise he will have no opportunity to change his mind. In my judgment, the true test is whether he intends to make his home in the new country until the end of his days unless and until something happens B to make him change his mind."
The Forum Issue