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Mark v Mark [2005] UKHL 42

A person can be habitually resident and domiciled in England and Wales, for purposes including the issue of a divorce petition, even if their presence in the United Kingdom is unlawful.

Mark v Mark [2005] UKHL 42

House of Lords: Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, and Baroness Hale of Richmond (30 June 2005)

Summary
A person can be habitually resident and domiciled in England and Wales, for purposes including the issue of a divorce petition, even if their presence in the United Kingdom is unlawful.

Background
This was an appeal against the decision of the Court of Appeal ([2003] EWCA Civ 1689). The case concerned a husband and wife who were Nigerian nationals, and the wife's petition for divorce and application for ancillary relief in July 2000. The wife had been given limited leave to remain in the UK, as the dependent spouse of a work permit holder, until the end of April 1998; after that date, she became an over-stayer and her continued presence in the UK was an offence under the Immigration Act 1971.

At the date of the petition, the wife relied only upon her habitual residence in the UK over the previous 12 months to found the jurisdiction of the court, but her petition was later amended to include a claim that she had acquired a domicile of choice here. In 2002, the husband contested that the court did not have jurisdiction because the wife's presence in the UK during the 12 months up to and including the issue of her petition had been unlawful. At first instance, it was held that the wife could not rely upon her unlawful presence as a basis for establishing habitual residence here but that she could rely upon it as a basis for the acquisition of a domicile of choice; accordingly, the court had jurisdiction. In February 2004, the Court of Appeal dismissed the husband's appeal on the ground that the wife had not only acquired a domicile of choice in the UK before July 2000 but had also been habitually resident in the UK throughout the previous 12 months.

It was not disputed that the wife would be habitually resident and domiciled in the UK were it not that her presence in this country was, at the material time, unlawful. The issue, therefore, was the impact of that illegality on the jurisdictional requirements set out in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 ('the 1973 Act').

Baroness Hale reviewed the authorities relating to 'habitual residence', approving Lord Scarman's words in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309; she also examined the common law concept of 'domicile'.

Judgment
Held, dismissing the appeal, that the UK courts had jurisdiction to entertain the wife's divorce petition, both on the basis of her habitual residence for the previous 12 months and on the basis of her domicile.

Habitual residence was simply an expression used in a variety of statutes for a variety of purposes and could have a different meaning according to the statutory context. Furthermore, a person could be habitually resident in more than one place at a time, or could have no habitual residence at all. Residence, for the purpose of section 5(2) of the 1973 Act, did not need to be lawful residence; and the question of whether the residence was habitual was a factual one.
As to domicile, a person must always have a domicile but could only have one domicile at a time. Hence it must be given the same meaning in whatever context it arose. There was no reason in principle why a person whose presence in the UK was unlawful could not acquire a domicile of choice in this country. Although the wife's presence here was a criminal offence, it was by no means clear that she would be required to leave if the position were discovered. That was not to say that the legality of a person's presence in the UK was completely irrelevant; it may well be relevant to whether or not she had formed the required intention to remain, but this was a question of fact and not a question of law.

Read the full text of the judgment here