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Sekhri v Ray [2013] EWHC 2290 (Fam)

International divorce in which the parties had spent a total of £860,000 in legal costs in three jurisdictions; dispute included the jurisdiction of England and Wales to hear the petition for divorce; consideration of whether either party domiciled in England and Wales

The husband and wife had met in London in their mid thirties. The husband was a successful lawyer with an international law firm and the wife was a paediatric anaesthetist. Within three months of meeting, they were contemplating living together in Singapore, where it was proposed they move for the husband's work. They married in December 2009 and their son was born in December 2010. Increasing difficulties in the relationship followed, culminating in the wife's (wrongful) removal of the child from Singapore back to London in September 2012. Since that time the parties had each spent about £430,000 in legal costs in three jurisdictions: England, Singapore and India, including on proceedings relating to the child. Despite the total assets of both parties amounting to c.£4 million, Holman J commented that they were not "multi-millionaires" and that the costs spent, in spite of his encouragement of the parties to settle the case, had been a tragedy.

The issue which fell for determination by Holman J was whether England had jurisdiction in respect of the divorce. The wife had issued a petition at the Principal Registry on 20 August 2012, whilst still living in Singapore. The parties agreed that at the time of the petition they were both habitually resident in Singapore. However the wife's case was that both, or at least one, of them was domiciled in England at the date of the petition. The husband denied this, but accepted that as a matter of law if the judge found either of the parties to be domiciled in England, the court would have jurisdiction, as there was no connecting factor with any other contracting state of the EU.

Holman J commented that there was an enormous jurisprudence in relation to domicile on which he did not intend to add. He did not consider that the case turned on nuanced distinctions between the words "permanent" and "indefinite". He based his judgment on the principles of law derived from Dicey, Morris & Collins on the Conflict of Laws, 15th edition and those summarised by Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ 77.

Concluding ultimately that both parties were domiciled in England at the date of the petition, Holman J held:

(1) The husband's domicile of origin had to be determined with reference to the domicile of his father. His father's domicile of origin was, beyond doubt, Indian. He had been born there and moved to England when aged 29. If he had acquired an English domicile of choice prior to the husband's birth, the husband's domicile of origin would be English, and if not it would be Indian. If the father acquired a domicile of choice during the husband's minority then the husband would have acquired and English domicile of dependence.

(2) On the facts available, Holman J held that the husband's father had acquired English domicile of choice prior to the husband's birth. Any plan the father had to return to India had been a pipe dream and by 1971 he was intending to live permanently and indefinitely in England, where his family were also determined to live. The husband's domicile of origin was therefore English and he conceded that, if this were found to be the case, he had not acquired a new domicile of choice in Singapore.

(3) The husband was therefore domiciled in England at the time of the wife's petition.

(4) The wife's domicile of origin was clearly Indian. She had lived in India until the age of 25.

(5) Prior to meeting the husband, the wife had acquired an English domicile of choice. She considered herself living here permanently, nor merely in furtherance of her career but because she preferred English attitudes and the English way of life. She had formed, in the words of Arden Henwood "a singular and distinctive relationship with this country".

(6) As to the hotly contested issue of whether the wife had abandoned her English domicile of choice when the parties moved to Singapore, Holman J found that she had not. She had considered that move to be a temporary one and she expected to return to her residence in England. She had not ceased to intend to reside permanently and indefinitely in England.

Accordingly, England and Wales had jurisdiction to hear the petition. Holman J invited further submissions as to the way forward.

Summary by Thomas Dudley,  barrister, 1 Garden Court Family Law Chambers


Neutral Citation Number: [2013] EWHC 2290 (Fam)
No. FD12D04003


Royal Courts of Justice
23rd July 2013

B e f o r e :

- and - 

ALOKE RAY Respondent
Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
Quality House, Quality Court, Chancery Lane, London WC2A 1HP
Tel: 020 7831 5627 Fax: 020 7831 7737
MR P. CHAMBERLAYNE QC (instructed by Sears Tooth) appeared on behalf of the Petitioner.
MR T. SCOTT QC (instructed by International Family Law Group LLP) appeared on behalf of the Respondent.

Crown Copyright ©

1. This case is a story of human tragedy. The husband and wife met through an online dating agency when each was in their mid-thirties. They were already mature people. They were, and are, each highly intelligent, very well educated, energetic, successful and ambitious professional people. The husband was, as he still is, a successful international lawyer and litigator and a partner in a world-class American law firm. The wife was, and is, a paediatric anaesthetist, already a Fellow of the Royal College of Anaesthetists, working at Great Ormond Street Hospital and within reach of achieving her goal of becoming a consultant at a leading London hospital. What each felt they lacked in their lives was a long-term partner or spouse.

2. They first met through the dating agency in December 2008. It is clear that a closeness rapidly developed, for within about three months, and by April 2009, they were clearly contemplating that they might move and live together in Singapore. They became engaged in June and married in December 2009. Their beloved son, Ishaan was born in December 2010. By August 2011 there were intense and aggressive arguments between them, with undoubtedly some violence given and received by each; and, frankly, well under two years after a marriage with so much promise, divorce became inevitable. They were, however, still tied together by Ishaan and it was not until the wife removed him, wrongfully, to England in September 2012 that they finally completely separated.

3. Since then they have each spent the staggering sum of about £430,000 on worldwide legal costs in England, Singapore and India - a combined total of over £860,000 (a significant part of those costs relates to litigation about Ishaan). At a hearing on 15 May 2013 I begged these parties to resolve their differences, and I referred in paragraph 12 of my short judgment (now at Bundle 5, Section I, p.191) to financial suicide. At paragraph 4 of my formal order that day (now at Bundle 1, Section A, p.63) I urged and beseeched the parties to travel to London and attend the present hearing "so that … they can be helped to settle all or as much as possible of the financial issues in this case". Neither party was personally present on 15 May 2013, each being in Singapore, but they will have seen the order and the transcripts of the judgment and, indeed, of the whole hearing.

4. At the outset of, and again during the course of, the present hearing I have repeatedly urged the parties to stand back from the fray and to focus on settling the relatively straightforward financial issues. There is very little dispute about the income or assets, and I expressly pointed out that during the hearing there was obvious litigation risk for each party as to the outcome on jurisdiction. It was thus a particularly good moment to seek to compromise. I made the same point on 15 May - see the transcript of my judgment at internal page 78 (now Bundle 5, Section I, p.187). They have not been able to do so. The sustained forensic struggle throughout the hearing was painful to observe.

5. Paragraph 11 of my judgment of 15 May records that at that date the estimated combined costs worldwide, to the end of the present hearing, was £600,000. So actually have already exceeded that estimate by a staggering £260,000. Mr Timothy Scott QC, on behalf of the husband, commented to the effect that costs estimates are notoriously unreliable. This is not marginal unreliability. This is a costs overshoot of no less than a quarter of a million pounds in the space of just two months. These parties are successful and prosperous, but they are not multi-millionaires. Their total net wealth is around £4 million. That they have already committed nearly one-quarter of that wealth to highly charged litigation, and an atmosphere of intense emotion day after day in the courtroom, merely serves to underline the tragedy.

6. During the course of his oral evidence, the husband acknowledged that the present battleground as to jurisdiction was motivated by his "perception as to the pay-out". Of course, there is an equal perception by the wife that she would receive more financial provision after a divorce here than in India, where the husband is seeking to litigate and obtain a divorce. Wherever they are divorced, there are obvious both strengths and weaknesses to any financial claim by the wife. The obvious weaknesses are that the marriage was a very short one and such wealth as there is is almost all in investment properties already owned by the husband before the parties ever met. The strengths are the dependence now of Ishaan upon the wife and the undoubted severe, even if temporary, setback to the wife's career that has flowed from the marriage and the move to Singapore and from its breakdown. Somewhere the husband will have to make fair provision for the wife. How tragic that instead of concentrating on that need and issue so much of the firepower has been directed to the issue of jurisdiction.

7. I stress that all the above observations are made entirely neutrally, for I have no idea what offers (if any) one or other party may have made or rejected and where, therefore, any intransigence may lie.

The context and the issues
8. So it is that I now have to resolve the disputed issues as to domicile and jurisdiction. I wish to stress at the outset, as I said several times during the hearing, that these issues require me to decide, as best I can, what the relevant true facts are and to apply the relevant law to them. I am not making any discretionary decision and I have no discretion at all at the present hearing or in this judgment.

9. On 20 August 2012 the wife, although living at that time in Singapore, issued a petition for divorce in the Principal Registry of the Family Division here in London. It is common ground that on that date both parties were, and recently had been, habitually resident in Singapore. But the wife alleges that both, or alternatively at least one, of them was domiciled in England and Wales on that date. The husband very strongly denies that either of them was domiciled in England and Wales on 20 August 2012. But he accepts that if, contrary to his case, one or both of them were so domiciled, then this court does have jurisdiction to hear the petition for divorce since, as is common ground, there is no connecting factor with any other contracting state of the European Union.

10. As it is the wife who presented the petition and seeks an English divorce, the overall burden of proof is upon her to prove that one or both of the parties was domiciled here on the relevant date. As her own domicile of origin is admittedly and undoubtedly Indian, the burden is upon her to prove that, as she claims, she later acquired an English domicile of choice. The burden is also upon her to prove that, as she asserts but he denies, the husband's domicile of origin is English; or, if not, that he later acquired an English domicile of choice. If, however, the wife does prove that each of them did, immediately prior to the move to Singapore, have an English domicile (whether of origin or choice) then the burden shifts to the husband to prove that such domicile was lost when the parties moved respectively to Singapore.

11. The standard of proof of disputed facts is the balance of probability. As a domicile of origin is more enduring and more adhesive than a domicile of choice, more powerful and cogent facts (proved to the balance of probability) are required before it can be concluded that the domicile of origin has been displaced by a domicile of choice.

The wife's domicile of origin
12. Both parties are of Indian Hindu descent. The wife was born, brought up and educated in, and lived in, India until the age of 25. Her parents were, and are, domiciled and resident in India. Her domicile of origin is clearly Indian.

The husband's domicile of origin or domicile of choice when he attained 16
13. I consider next the much more controversial issue of the husband's domicile of origin and the linked issue whether there was any change in his domicile during the period of his dependence, for these purposes, upon his father, i.e. until the husband attained the age of 16 in September 1987. Until then his domicile was necessarily that of his father, the late Mr Bikas Ray. I will for convenience and clarity, but meaning no lack of respect to the memory of the gentleman, refer to him throughout as "Bikas".

14. It is again beyond doubt or issue that the domicile of origin of Bikas was Indian. He was born in Calcutta of Indian parents in 1935. He first moved to England in 1964 at the age of 29. With the exception of one period of about seven months during 1970 when he returned to live in India, he was to remain living in England for the rest of his life. If, which is hotly contested, Bikas had acquired an English domicile of choice by the time the husband was born in September 1971, then the husband's domicile of origin is English. If not, then the husband's domicile of origin is Indian, although he has never lived there and shows no intention of ever doing so.

15. If Bikas acquired an English domicile of choice after September 1971, but before September 1987, then that became the domicile of dependence of the husband. Mr Scott expressly concedes, on behalf of the husband, that if (which is strongly denied) Bikas had acquired an English domicile of choice after September 1971 but before September 1987, so that that was the domicile of dependence of the husband when he attained the age of 16, it did, on that date and on the facts of this case, become the husband's own domicile of choice on and from that date. That concession is, rightly, based upon paragraph 6-086 on page 165 of the current 15th edition of Dicey, Morris & Collins on The Conflict of Laws, which I will, also for convenience, refer to as Dicey. If Bikas acquired an English domicile of choice, but only after September 1987, then that is irrelevant to the husband's own domicile, which is governed by his own acts and intentions subsequent to that date.

16. Bikas died in London from a heart attack very suddenly, and completely unexpectedly by either himself or his family, on 14 September 1993, the day before his 58th birthday. He was living in London at the house he had bought here over 20 years before. Apart from the seven month period, he had lived continuously in London for 29 years and exactly half his life. There is considerable evidence to the effect that he always nurtured the hope of returning to live in India after his retirement if not before. Because of his tragically early death, no one can ever know with certainty whether that hope would ever have materialised or whether, in reality, he would have remained and intended to remain living here in England, where his three children were well-settled (tragically one has since also died of cancer) and where, as is clear from her evidence, his wife strongly preferred to live.

The legal framework
17. In 1858 Lord Cranworth said in the House of Lords:

"By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it."

Since then, and despite those words, the topic has generated an enormous jurisprudence, with different judges choosing to express themselves in varying ways, often reflecting the factual context of the case. I do not intend to add to that jurisprudence, nor, in my view, is it necessary or proportionate for a busy judge at first instance extensively to cite from it. I do not consider that this case should turn, or does turn, on some very nuanced distinction between "permanent" (stressed by Mr Scott) or "indefinite" (stressed by Mr Martin Chamberlayne QC on behalf of the wife), both of which words feature repeatedly, and often apparently interchangeably, in the authorities.

18. Whilst any act or circumstance may be relevant to determining domicile, the Comment in paragraph 6-049 of Dicey shows how the same act or circumstance may in one case be regarded as pointing one way, and in another case, the other. I base myself on the principles of law, derived from Dicey, which are conveniently summarised by Arden LJ in Barlow Clowes International Limited v Henwood [2008] EWCA Civ. 77 at paragraph 8, the whole of which I incorporate into this judgment by reference.

Bikas' life and intentions
19. Apart from the seven month period, Bikas unquestionably resided in England for the remainder of his life after he came here in 1964 at the age of 29. The question is as to his mental state and intention. He was born and brought up in India of Indian parents. He was a graduate there. He first visited England in the early 1960s. He married his wife, Mrs. Ratna Ray, in Calcutta in August 1964. It was an arranged marriage and they had not met before the day of the wedding. He moved to live in England in September 1964 and his wife joined him in December.

20. I heard oral evidence from his wife, now widow, Mrs. Ratna Ray. She is now aged 73. Her father was a professor of mathematics in India and she herself has both graduate and post-graduate degrees. She was later to have a good career in the English Civil Service. She is clearly a lady of considerable intelligence and, I thought, quite shrewd and canny. During the course of her evidence she was quick to get the point and was clearly very well aware of the course of this litigation and the issues in this case.

21. She said that she had composed and typed her long statement, dated 23 May 2013 (now at Bundle 2, Section D, p.290) completely unaided and by herself in Singapore, where she now stays for long periods with her son. She said that it was only after she had typed and prepared it that she sent it to her daughter, Dr Sarbani Jollyman, here in England to check such matters as the grammar, punctuation and spelling, and that it was then signed without further alteration. That cannot be completely correct as the statement was, if nothing else, clearly topped and tailed by the husband's solicitors, who added a back sheet (now page 307) in exactly the same typescript and with sequential page numbering. If, as she claims, the statement itself is entirely the unaided work of Mrs. Ray, then it reveals a remarkable grasp of the issues in this case. It is uncanny that she spontaneously thought it necessary and appropriate to make a reference, at paragraph 58 (now at Bundle 2, Section D, page 306) to a discussion about Aloke's will in August 2012. An issue was emerging in relation to this, but she could not have known it unless prompted. I do not believe that Mrs. Ray made and typed the statement unaided, unprompted and all by herself in Singapore. Even if she did do so, I am quite clear that she had been thoroughly versed as to the issues of the case and what she was expected to say. The husband, his mother and his sister, Dr. Jollyman (from whom I also heard evidence) have collaborated to ensure a consistent story; and if they were largely singing from the same song sheet, it was the husband who orchestrated and conducted it.

22. That said, I accept the broad thrust and, indeed, many of the details of their accounts. I accept that Bikas first came here in 1964 to qualify as a chartered secretary with a view to improving his job prospects on later return to India. He was at the time rather anti-British and anti the British Imperial history in India, and the subsequent partition. In 1965 he wrote the pamphlet (now at Bundle 2, Section D, pp.147-150) which reflects those sentiments. Mrs. Ray said that she thought the pamphlet went too far and she herself was a bit embarrassed about it, but that his views never changed. They did not at that stage buy any property in England and they returned to India in April 1970. Mrs. Ray herself, who now had two young daughters, then aged about 2½ and 1, did not want to do so, particularly in the month of April when, she said, going to India was not her idea of fun at all. But Bikas had abruptly given up his job here in February and would not delay at all. Mrs. Ray said that all their belongings were sent back to India and she was not expecting to come back to England and was sad. It is not in issue that they did return to India in mid-April 1970, and I accept Mrs. Ray's broad account about the circumstances. It seems to me unlikely that Bikas had acquired any domicile of choice here in the period up to April 1970. Even if he did, he then abandoned it and his Indian domicile of origin reverted.

23. The seven month period in India, between April and November 1970, is, however, of considerable significance. It was not a success. Despite now being qualified in England as a chartered secretary, Bikas failed to get a job in India. Their living circumstances there were very difficult and cramped. The very young daughters became ill with boils and diarrhoea. Their savings were rapidly depleting. Mrs. Ray became pregnant again, although she was later to miscarry. She said she was really very cross with him for having given up his job in England without consulting her. She thought it was a very irresponsible decision. She clearly wanted to come back to England and he agreed. They returned in mid-November 1970 and their home remained in England ever after. In July 1971 they bought the house at 30 Colin Gardens, Colindale which became their home and that of their children, and which remains the home of Mrs. Ray, albeit that she currently stays for long periods in Singapore.

24. The family say that Bikas never lost his yearning to return to India. He visited there on several occasions to visit his family but also to investigate employment opportunities. In the 1970s the visits were of three to four weeks' duration and in alternate years. He always returned with no job offers or prospects. After 1970 his wife never went with him again until 1992. The family say that he tried to make savings for a return to India and that (as I accept) he would never spend any money avoidably on the house at Colin Gardens (for example, it was only after his death that central heating was installed). His wife, Mrs. Ratna Ray, applied for and obtained British citizenship in 1984. She says, and I accept, that Bikas was appalled at the time and was adamant he would never apply for British citizenship. In fact he did do so in 1991, although that cannot illuminate whether he acquired an English domicile of choice before or during the dependence of the husband.

25. In 1992 Bikas and Mrs. Ray did travel together to India, their only joint trip since 1970. Bikas did look at some flats, as Mrs. Ratna Ray described in paragraph 33 of her statement (now at Bundle 2, Section D, page 299) but Mrs. Jollyman comments, in paragraph 8 of her statement (now at Bundle 2, Section D, page 284) that "… it seemed that my father was more excited by this prospect than my mother". It was very clear from the oral evidence of Mrs. Ratna Ray that nothing would have induced her to leave England and live in a flat in India, and Bikas would not leave her and do so himself.

26. Mr Scott accordingly submits that Bikas never gave up the desire to return to live in India, initially to work there, later to retire there after retirement from working here. So, as Mr Scott put it in paragraph 112 of his skeleton argument, he submits that: "What matters is his state of mind - his intention or animus manendi. He never had any intention to remain in England. The last thing he wanted was to end his days here. Even if his desire to return to India was not realistic and was never likely to come to fruition, his desire to do so would mean that no domicile of choice in England was acquired."

27. I do not consider that the proposition "he never had any intention to remain in England" is in fact correct. Left entirely to himself, he may have intended later, if not sooner, to return to India. But what shines out very clearly from all the evidence is that Bikas was first and foremost a family man, albeit quite a strict disciplinarian of his children. He loved and was completely loyal to his wife. He loved his children and would never leave them behind. It was very clear to me, from the evidence of Mrs. Ratna Ray, that the seven months in 1970 were a watershed in the lives of both of them. For her, they were a disaster. Bikas accepted then that they should return to England; and he knew, I stress knew, ever thereafter that she would never return to live in India again although she might, of course, pay visits as indeed she did. The settled intention of Bikas was to remain living with his wife and close to his children. That was his intention when they returned in November 1970. There is no evidence that he ever wavered in that intention.

28. Indeed, in paragraph 36 of his own statement, dated 23 May 2013 (now at Bundle 2, Section D, p.102) the husband describes how his father accompanied him to Nottingham Law School on 12 September 1993, two days before he died. It was destined to be their last time together. In the husband's own words, his father "was looking forward to spending more time in India, and knew he did not have to provide for us anymore". The husband does not say that his father was looking forward to moving to live in India. The reason is clear. Bikas knew that he could never, and would never, do so.

29. In my view, all the talk of ceasing to live in England and returning to live in India, as his home, was no more than a pipe dream after the seven month period, and he knew it. His intention, from immediately after the return in November 1970, was to live permanently and indefinitely in England, for it was here that his wife, together with their then two children, was determined to live. Practical effect was given to that intention by the purchase of 30 Colin Gardens in July 1971. I am quite satisfied that Bikas had acquired an English domicile of choice by, at the latest, July 1971. That was his domicile when the husband was born in September 1971 and is accordingly the husband's domicile of origin.

30. I stress that in reaching that conclusion I take no account at all of (i) the fact that Bikas acquired British citizenship in 1991; nor (ii) the fact that when probate was obtained and granted of his will in 1993, Mrs. Ratna Ray swore that he had died domiciled here and the grant accordingly states that fact. Neither of these facts in any way illuminates the domicile of Bikas in 1971 (when the husband was born) or even in 1987 (when he attained the age of 16).

The current domicile of the husband
31. The husband expressly accepted and agreed in his evidence that if his domicile of origin is, as I have concluded, English, then he has never acquired any domicile of choice elsewhere to displace that domicile of origin. He strongly asserts that if he has an Indian domicile of origin, and had at most an English domicile of choice, then that English domicile of choice was abandoned when he moved to Singapore in 2009. But he does not suggest, nor does Mr Scott submit, that he has ever acquired a Singapore domicile of choice so as to displace his domicile of origin.

32. I hold that his domicile in August 2012, when the petition was issued, was (as the petition avers) English and, insofar as relevant, remains English to the present time. I have, of course, reached these conclusions entirely by reference to Bikas. I observe, although it does not influence my conclusions, that my conclusions align with the position that the husband has himself consistently taken in his signed English tax returns. Under a heading "Domicile" Box 25 asks a question: "If you were born in the UK [which he was] but have never been domiciled here, put X in the box". There is no X in the box. I do not accept that this intelligent and rather precise and meticulous man does not read through his tax returns before signing them. Despite his Indian ancestry, it never occurred to him before these proceedings that he was, or even might have been, domiciled anywhere other than in England or the United Kingdom.

33. Being a partner in an American law firm, who receives most of his income in America, although resident in Singapore, the husband also has to make Californian tax returns. Until that for 2012 these have completed the printed statement "During [the year in question] I was domiciled in" with the letters "N/A". That for the year 2012 inserts the answer "Singapore". The husband agreed in his evidence that that answer is not correct.

Did the wife ever acquire an English domicile of choice?
34. I turn now to consider the position of the wife. If she ever acquired an English domicile of choice, she had already done so before she first met the husband in December 2008. She trained as an anaesthetist in India and travelled to England in July 2002 at the age of 28. She obtained work here as an anaesthetic registrar and qualified as a FRCA in January 2006. In March 2005, after she had been here less than three years, she had bought a house in Ealing as her home. She still owns it, although currently it is rented out while she is compelled to live in Singapore as a result of orders made in proceedings concerning Ishaan both here and there.

35. The wife describes in her statement dated 17 April 2013 how she had dreamt for many years of living and working in England. She describes in paragraph 25 of the statement (now at Bundle 2, Section D, p.17) that after her first unsuccessful arranged marriage rapidly came to an end, "I had to cope with the social pressure of being a separated woman in Indian society. Divorce is looked down upon in India. I resolved to leave India and put all my energy into my career." She had visited her aunt, also a doctor, in London in late 2001 or early 2002 and was enthused by what she found here. She says at paragraph 26 that: "My parents fully supported my decision. They knew that life for me as a divorcee would be very difficult in India and that my career opportunities would be greater in London." She says at paragraphs 28 and 30 of her statement that after she began working in London "I missed my parents and sister sometimes, but not India. I had come to resent the narrow-mindedness of Indian culture, the bureaucracy, the lack of an effective public health system and the status of women in society … There is no doubt in my mind that within a very short time of being in London that England was my permanent home …". She says at paragraph 34: "I was extremely happy in England. My life revolved around my work and friends. I had no desire whatsoever to return to live in India. I enjoy being free of the restrictiveness of Indian society and the opportunities that London had provided to me. I could not, and still cannot, envisage any situation in which I would willingly return to live in India."

36. Whilst these may be characterised as self-serving statements, they seem wholly consistent with the course of her work here, her continued study and exams here, and the purchase so relatively early in her time here of a home here. It does not seem to me that the fact that she later chose to marry in India in any way contraindicates that she had acquired a domicile of choice here. India was her natal home and it was in India that her parents and many of her family still live. She explained in her oral evidence that the cost to her father of the wedding celebrations would be less in India than here. Nor, in my view, does the fact that in 2005 her parents bought a small flat (off plan) in Delhi, which they placed in her name. They bought it for their own investment or retirement purposes and the decision of the parents to place it in her name (which was their act and decision, not hers) is entirely explicable as making inheritance provision for her. It was not she who bought the flat.

37. I am in no doubt that well before December 2008 the wife had acquired an English domicile of choice. She was living here permanently, not merely in furtherance of her career but because she preferred English attitudes and the English way of life. She had formed, in the words of Arden LJ in Henwood, at paragraph 14 "a singular and distinctive relationship with this country". Her residence here was settled and not fixed for a limited period or particular purpose, but was general and indefinite in its future contemplation. But for her later falling in love with the husband, and his career move to Singapore, none of which she could have foreseen before she met him, she had every appearance, every intention and every expectation of living lifelong in England, the country of her choice.

Did the wife abandon her English domicile of choice upon her move with the husband to Singapore?
38. As already stated, the husband does not assert that he himself has yet acquired a domicile of choice in Singapore, if indeed he ever will. He could not realistically or consistently suggest that the wife, whose presence there has been dictated by his career, has nevertheless done so; and he expressly said in his oral evidence that he does not think she has acquired a domicile of choice in Singapore. He does, however, strongly assert (and Mr Scott strongly submits) that by moving to Singapore the wife abandoned her English domicile of choice so that her Indian domicile of origin has reverted.

39. This brings me to areas of great controversy between the parties and conflicts in their evidence. The essential issue is as to the state of mind and intention of the wife (whose domicile is in issue) when she ceased residing in England and moved to reside in Singapore (or, if different, her subsequent states of mind and intention). The relevant legal framework is stated in Dicey, Rule 13 at 6R-074 and 6-075:

"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."

The Comment in Dicey states:

"A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. It is not necessary to prove a positive intention not to return: It is sufficient to prove merely the absence of an intention to continue to reside."

40. In December 2009 the husband began to reside in Singapore and has done so ever since, albeit with long periods away travelling in the course of his work. On 22 July 2010, immediately after gaining her British citizenship, the wife moved to reside in Singapore and resided there continuously until mid-September 2012 - i.e. after the date of the petition. In September 2012 she brought Ishaan to England and fought strenuously to be able to remain here. She was, however, ordered to return him to Singapore in December 2012 and has been effectively constrained to live in Singapore ever since as a result of orders of the Singapore court in relation to Ishaan.

41. The husband asserts that when the wife moved to Singapore in July 2010 she had an absence of an intention to continue to reside permanently or indefinitely in England; alternatively, that at some stage earlier than August 2012 she had attained an absence of an intention to continue to reside permanently or indefinitely in England.

42. In a sentence, the essential case of the husband is that when he moved to work in and from the Singapore office of his firm his intention was to remain for an indefinite and potentially long period in Singapore and that, as his wife was accompanying him, she must have had the same intention.

43. Her case is that the move was only intended to be, or at all events understood by her to be intended to be, for a finite period of no more than two or, at the most, three years, after which he and she would return to England where she always intended to reside and pursue her career in the longer term.

44. After achieving advanced academic qualifications, the husband trained with Clifford Chance during which time he spent six months working in their Hong Kong office. In 1999, by now aged 27, he joined the American law firm White & Case LLP. By now he was investing, and continued to invest, in properties in London, of which he currently retains five. He studied in his own time and qualified also as a member of the New York Bar in 2002, after which he moved to New York for what turned out to be a little over four years, from late 2002 to February 2007. During this period he became an equity partner in 2006. I accept that during that period he began discussions with his firm about the possibility of his later working in South East Asia. However, his initial move in February 2007 was back to England. I accept that this was influenced by the terminal illness at that time of his sister, who later died in June. He continued to work throughout 2007 and 2008 in London, where he purchased another property, at 43 Gayton Road in Hampstead, an area to which he is very attached.

45. Discussions continued within the firm about his possibly moving to South East Asia. It was against this background that the parties first met in December 2008. At their first few dinner dates in December the husband said nothing to the wife about any possible move to Hong Kong. He told her that he had studied at both Oxford and Cambridge (as he had) and was a leading London lawyer working for a top international law firm. She told him that her ambition was to be a consultant anaesthetist specialising in paediatric anaesthesia at a leading London hospital.

46. There was, however, an important brunch at a restaurant on or about 4 January 2009 when he did broach to her that he might be moving to Hong Kong. He said in his oral evidence that he thought the meeting on 4 January 2009 would be their last meeting because he thought she might feel he had misled her. As he put it, why go on five dates if he was moving to Hong Kong? He says that he told her that the projected move was for an indefinite and possibly long period. She says that when he first told her about Hong Kong at the brunch she thought he was breaking up with her. She says that she was a bit upset and said that he should have told her sooner. She says that he told her that his intention was to ask her if she would accompany him and told her that it would be a two year assignment. According to the wife, she then told him that she would have to speak to her friends and family, but that it would be okay by her so long as she could work there and that it would only be for two years.

47. The husband himself says that he went to the brunch fearing that it would be their last meeting, although he clearly was thinking by now of a long-term relationship if not marriage. It seems to me very understandable and highly likely that he was less than direct about the length of time that he might be in Hong Kong, wanting to soften the blow. I accept the evidence of the wife, who I found entirely credible on this issue, and am quite satisfied that as far as she personally was concerned she came away from that brunch meeting believing and understanding that the move would be for a finite period of the order of two or, at most, three years.

48. The wife did then investigate job opportunities and learned that it would be impossible for her to work in Hong Kong without re-qualifying there, but that she could do so in Singapore. Thus it was that the venue of the husband's proposed move shifted from Hong Kong to Singapore. Both parties agree that Singapore represented a compromise for each of them. He much preferred, and prefers, Hong Kong to Singapore. She would have preferred to remain living and working in London. I accept her evidence that "I have worked very hard for my career. My aim was to be a consultant in the UK". So the plans were laid.

49. It is clear from the life insurance application with Bright Grey that the wife signed on 30 April 2009 (see Bundle 2, Section D, p.59) that she was by then definitely contemplating "possibly going" to Singapore or Hong Kong. It was described in the form, now at Bundle page 67, as a "one off visit" to start on 1 January 2010 with an expected duration of 850 days. The insertion of a precise number of days was probably driven by the language of the question on the form ("For how many days …?") but the figure of 850 is clearly indicative of a period of the order of two to two and a half years.

50. The very next day, 1 May 2009, White & Case issued a press release which said: "White & Case restructure Asia dispute team. Aloke Ray will move to Singapore to head the firm's international arbitration practice in Asia … Ray is being relocated from the London office and will begin his new role in the autumn …". The husband forwarded this to the wife on 3 May 2009. Mr Scott submits that from that press release, if not before, the wife must have known that the move was "relocation" with no stated term, and that if, as she claims, she thought until then that the move was for a limited period she would surely have protested, which she did not do.

51. They married in December, after which the husband was based immediately in Singapore. She remained in England to complete the process of obtaining citizenship. She actually moved to Singapore on 22 July 2010. It is striking that on 17 June 2010 she had sent a text to Katharina Schumacher (now at Bundle 2, Section D, p.71) which refers to being "… off to Singapore for a year." This is the first of a number of texts and emails to various friends which the wife produces at pages 71-77. To Chris Whiten, at page 75, she wrote: "… Singapore is supposed to be short term deployment for Aloke … In a way am glad to get a breather in Singapore for the time being…". On 1 January 2011 she texted Mitesh Khakhar: "… in Singapore at the moment - on a year out here …" (page 22). On 12 April 2011 she wrote to Sampath Shenoy: "Would have loved to apply for it [a job in England] but will pass on this time - we are still going to be here for a year!! … Please whenever next one [viz. a job vacancy] comes up mail me …" (page 76).

52. Mr Scott says that these are very selective and trivial texts and emails to casual friends or acquaintances, and that nothing has been produced passing between the wife and her much closer friends or family. Mr Chamberlayne says that their very triviality is significant. The wife was not laying down evidence for the future and they spontaneously indicate her understanding and mind-set. They were there for a year or so; it was a breather; she remained actively interested in the English consultancy job market. Mr Scott counters that by saying that the texts and emails are in any event not accurate or reliable (referring only to a period of one year when, on her own case, they were going for at least two) and that she was merely understating the true duration of the relocation so as to soften the impact on her casual friends.

53. Neither party sold their respective properties here. The wife has retained, although rented out, her home in Ealing. The husband still retains five rented properties. Mr Scott says that that merely reflects the husband's belief that the London property market is a good area in which to invest.

54. Many other indicators have been trawled over and relied upon. The husband had only a one way relocation allowance; his terms included heavily subsidised accommodation for a period of five years; the lease of the flat in Singapore was initially for three years. On the other side, Mr Chamberlayne points out that the wife retained not only her home but all her professional connections and subscriptions here, including her subscription to the English Medical Jobs Vacancy Service. Much time was spent considering the opening words of a will which the husband made in March 2012, which begins: "I, Aloke Ray, of 30 Colin Gardens … England but currently residing at [address in] Singapore …" (see Bundle 2, Section D, p.84). The force of the point was blunted, however, when it became clear, as Mr Chamberlayne finally accepted, that a later will (now at Bundle 2, Section D, p.259), which makes no reference to an English address, was indeed signed on 21 August 2012 before the husband knew that the wife had issued her petition or that any issue arose as to domicile.

55. These and other points are all equivocal or no more than indicators. The crunch question is whether I believe and accept the wife's strong assertion that she herself always understood that the move was for a time limited period and that she expected and intended to return to England and resume her career here and her residence here. I do believe and accept it. I am, in particular, very clear that the wife had long ago set herself the goal of becoming a consultant at a leading London hospital and has never wavered from that goal and intention. The move to Singapore was, for her, no more than a pause and an episode or, as she put it in one email, "a breather". I am thus not satisfied that when she first moved to Singapore, or at any time whilst she remained there, the wife ceased to intend to reside permanently and indefinitely and long-term in England. She has never abandoned her English domicile of choice.

56. I thus conclude that each party was, as the petition for divorce alleges, domiciled in England and Wales on 20 August 2012 and the court has jurisdiction to entertain the petition.

57. Apart from challenging jurisdiction, the husband has never filed an answer to the allegations in the petition. He has not made an application for a discretionary stay of the English proceedings, and at the hearing on 15 May Mr Scott told me that he did not intend to do so (see paragraph 4 of my judgment that day, now at Bundle 5, Section I, p.189). It provisionally appears to me, therefore, that the way is now open for the wife's petition to proceed to a decree nisi. It is as plain as a pikestaff that the marriage has irretrievably broken down and, in the light of some of the evidence I have heard and read, it will be surprising if she could not establish her entitlement to a decree. I will now invite submissions as to the way forward.