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Where does our client live? Habitual Residence and Residence under Brussels II (Revised) after Marinos

Nick Allen, of 29 Bedford Row, looks at the interpretation of habitual residence under Brussels II Revised following the recent judgment of Marinos v Marinos

image of nicholas allen 29 bedford row

Nicholas Allen, 29 Bedford Row

On 3rd September 2007 Mr Justice Munby handed down Judgment in Marinos v Marinos [2007] EWHC 2047 (Fam) – a case which concerned the issue of whether a wife had grounds under Brussels II (Revised) [Council Regulation No. 2201/2003] to petition for divorce in England.

The Judgment has generated significant interest – being one of the first cases in which 'habitual residence' within Brussels II (Revised) has been defined either in this jurisdiction or, as far as is known, anywhere else in the EU. It is therefore likely to directly affect not just this country but all EU family law jurisdictions.

The facts
The case concerned a husband ('H') who was Greek and a wife ('W') who was English. The parties met and married in England in 1992 and had two children born in 1996 and 2000 respectively. In late 2002, the parties moved to Greece, either for a trial period or as a temporary relocation. Both children were enrolled in schools in Greece; H took up a position with a medical centre in Athens and W returned to part-time work as cabin crew with British Airways in July 2003 on a 33% contract (i.e. three weeks working in a nine week period). She would travel from Athens to London and thereafter from London on her flights as appropriate. On 13th September 2006, W increased her contract to 50% (i.e. four weeks working in an eight week period) for a fixed six-month term.

W had completed a part-time law degree (LLB) prior to the parties' move to Greece and deferred the start of her part-time LPC. In 2004, W was informed that she could not defer the course for another year so she completed the LPC part-time in Birmingham from September 2004 – June 2006. She had a room kept at her parents' house which she used whilst studying and when she visited her parents either when working or with the children on holiday.

The parties separated on 31st January 2007 when W returned to England with the two children who started new schools on 5th February 2007. W and the children lived in a hotel until 6th March 2007 when they moved back into the parties' London property once the tenants had vacated.

W issued her divorce petition on 1st February 2007 – i.e. the day after she returned to England. H disputed that jurisdiction existed and sought a stay. H also issued his own divorce proceedings in Greece. Because W had issued first in time, her petition would take priority if there was jurisdiction.

Basis of jurisdiction
The jurisdiction of the High Court and county courts to entertain proceedings for divorce or judicial separation is set out at s5(2) of the Domicile and Matrimonial Proceedings Act 1973. The court shall have jurisdiction if (and only if) the Court has jurisdiction under Brussels II (Revised) or no Contracting State has jurisdiction under Brussels II (Revised) and either of the parties is domiciled in England and Wales on the date when proceedings are begun.

W issued her divorce petition relying on the sixth of the seven potential grounds for jurisdiction set out at Article 3(1) of Brussels II (Revised) – namely that this was the member state in whose territory "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 or her "domicile" there."

H challenged the jurisdiction saying that both he and W were habitually resident in Greece; that W was domiciled in this country on the day that she issued her petition was not in dispute.

The Judgment
Munby J held that W was entitled to petition for divorce where and when she did. There were essentially four aspects to his Judgment:

1) there is an autonomous EU-wide meaning of 'habitual residence' that applies to Brussels II (Revised);
2) a person can have only one 'habitual residence' at any one time for the purposes of the autonomous definition;
3) the word 'resided' in the ground in question means 'resided' and not 'habitually resided'; and
4) in appropriate circumstances a person can acquire a new 'habitual residence' under the autonomous definition very quickly.

Habitual Residence – the autonomous definition
The term 'habitual residence' was found by Munby J to have an 'autonomous' meaning for the purposes of Brussels II (Revised). He cited the decision of the European Court of Justice in Hagen v Einfuhr-und Vorratsstelle Getreide (Case 49/71) [1973] 12 CMLR 23 at para [6]:

"Terms used in community law must be uniformly interpreted and implemented throughout the community except when an express or implied reference is made to national law."

and Rayden and Jackson on Divorce and Family Matters (18th Edition, 2005) at para 2.145:

"… in European Community law [habitual residence] has a community wide meaning and will be determined by the judgments of the European Courts of Justice."

Munby J noted that the autonomous concept of habitual residence was first considered in this jurisdiction in L-K v K (No 2) [2006] EWHC 3280 (Fam), [2007] 2 FLR 729, FD by Singer J in which the wife had petitioned for divorce on the basis that both parties were habitually resident in the jurisdiction. Singer J stated (at [35]) that "[t]here is, of course, no need for the concepts to be the same in domestic and in community law."

Munby J thereafter summarised the relevant ECJ case law and noted that there is as yet no decision of the ECJ directly on point as to the meaning of Article 3 of Brussels II (Revised). He therefore considered the Explanatory Report on Brussels II prepared by Dr Alegría Borrás (16th July 1998 – Official Journal 1998 C221, P. 0027-0064) in which it was said at para 32:

"Although the possibility of including a provision determining habitual residence similar to the one in Article 52 of the 1968 Brussels Convention was discussed, in the end it was decided not to insert any specific provision on the matter. However, although not applicable under the 1968 Brussels Convention, particular account was taken of the definition given on numerous occasions by the Court of Justice, i.e. 'the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence'."

Munby J therefore concluded that the intention was that the phrase 'habitual residence' in the context of Brussels II (Revised) should have the meaning given to it in the case-law of the ECJ concluding (at para [33]) that:

"Accordingly, in my judgment, the phrase "habitually resident" in Article 3(1) has the meaning given to that phrase in the decisions of the ECJ, a meaning helpfully and accurately encapsulated by Dr Borrás in para [32] of his report:

"the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence"

and by the Cour de Cassation in Moore v McLean [Appeal No. H 05-10.951]:

"the place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests."

Habitual Residence – one country or two?
Under the domestic definition of habitual residence it is possible to be habitually resident in more than one country at any one time (see Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, CA and Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375, FD). Therefore if a person divides their time between two different countries and can be said to live in both with a settled purpose, it will be held as a matter of domestic law that they are habitually resident in both.

Munby J concluded that this was not possible given the autonomous definition. ECJ case law, the Borrás report and the wording of Brussels II (Revised) itself mean that "at any given time a person can have only one habitual residence for the purposes of the Regulation" (para [41]). The wording focuses upon "the place or State, in which someone has the centre of his interests" (para [40]). He concluded that "there can only be one such place, only one such centre" (para [40]) and it would be "linguistically and conceptually inconsistent" (para [40]) for there to be two simultaneous places of habitual residence.

Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, CA was said to remain good law but that it did not apply. However two cases – namely Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375, FD and C v FC (Brussels II: Free-Standing Application for Parental Responsibility) [2004] 1 FLR 317, FD - were not followed on this point.

'Reside' or 'Habitually Reside' over the relevant period?
It had been stated that the six-month period of 'residence' referred to in the relevant ground required habitual residence, rather than just simple residence per se. As Dicey, Morris & Collins 'The Conflict of Laws' (14th Edition, 2006) stated at para. 18-005 (page 868):

"the habitual residence of the applicant is not in itself a sufficient basis for jurisdiction; it must be supplemented by … the fact that the applicant's habitual residence had continued for at least six months before the application was made coupled with his or her domicile in England"

A similar statement appears in Rayden & Jackson on Divorce and Family Matters (18th Edition, 2005) para 2.151 (page 2/90).

It was held by Munby J that these statements were incorrect. In neither text was there any analysis of the actual language used in Brussels II (Revised) and in each commentary the matter proceeded by way of assumption rather than with any specific consideration of the wording of the Regulation or the ECJ case-law.

Munby J stated that Brussels II (Revised) "means what it says. "Resided" means just that. It refers to residence; it does not connote habitual residence" (para [49]). The Regulation clearly distinguishes between the two concepts of residence and habitual residence and the words 'habitually reside' could very easily have been used in place of merely 'reside'. Therefore in order to satisfy the requirements of the ground the applicant had to show (i) habitual residence on a particular day; and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period (para [46]).

The lapse of time
The issue therefore arose as to the length of time that must pass, if any at all, before one can attain the status of being 'habitually resident' in a particular country. Under our domestic law the position has long been based upon the judgment of Lord Brandon of Oakbrook in In Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, HL (sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, HL) where it was stated [at 578/579] that although habitual residence could be lost in a single day it could not be gained in a day because 'an appreciable period of time' had to pass.

There was no indication given in Re J (A Minor) of how long a period of time an 'appreciable' period is. Over recent years it has become increasingly clear that the period need not be very long. It can be measured in weeks rather than in months and in an appropriate case it can probably be measured in nothing more than days: the applicable principle being that the more settled one's purpose and closer the existing connection, the shorter the period will suffice as 'appreciable'.

Again Munby J relied on L-K v K (No 2) [2006] EWHC 3280, (Fam) [2007] 2 FLR 729, FD per Singer J in concluding that in relation to Brussels II (Revised) one can in appropriate circumstances establish habitual residence very quickly. At para [31] he cited from paras [36] and [44] of L-K v K (No 2) with approval:

"the European authorities tend to demonstrate, in my judgment, far less, if any, emphasis on the ingredients which English law has developed that there needs to pass an appreciable time before a person can become established as a habitual resident of this country."

and

"although length of time clearly can be a relevant factor it is not a conclusive factor. Nor is there any particular period set down as a minimum."

At para [32] Munby J cited from para [38] of L-K v K (No 2) in which Singer J put a 'gloss' (as so described by Singer J) on the definition of habitual residence given in the Borrás report):

"The verb used is "established" and all relevant factors are to be taken into account. But there is nothing beyond any degree of length of time in the words used, except as can be ascribed to the word "established". One can establish something very quickly, or it may take time to establish. Once a situation is firm it is established."

Munby J concluded that "one can in appropriate circumstances establish habitual residence very quickly, in my judgment very quickly indeed" (para [88]). He referred to the ECJ decision in Swaddling v Adjudication Officer (Case C-90/97) [1999] 2 FLR 184 (at para [30]) in concluding that "the length of residence is not an intrinsic element of the concept of habitual residence in this context" (para [88]).
Munby J concluded that where someone is undertaking a planned, purposeful and permanent relocation from one country to another there is nothing in EU law to prevent the acquisition of a new habitual residence "contemporaneously or virtually contemporaneously with the loss of one's previous habitual residence" (para [89]). Therefore, although in the present case, W had only been back in this country for 24 hours this was considered sufficient for her to have acquired a habitual residence in this country.

It will be interesting to see whether one of the effects of this Judgment is to open up more opportunities for spouses to issue proceedings in England and Wales than has hitherto been the case. In Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246, CA Sir Mark Potter P stated (at para [123]) that:

"Now that London is regularly described in the press as the 'divorce capital of the world' it is inevitable that applicants will seek to achieve a London award."

Munby J may have made the achieving of such an award a little easier.

NICHOLAS ALLEN
29 Bedford Row
London
WC1R 4HE