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Home > Judgments > 2008 archive

M v M [2007] EWHC 3315 (Fam)

Judgment in divorce proceedings concerning jurisdiction where a couple had moved to Spain. The judge found that the English courts had jurisdiction.

The couple, who had been born and worked in England, married in 2002 and moved to Spain with the wife’s two children from a previous relationship. They owned property and were shareholders in companies in Spain and the husband was a tax exile who could only return to England under the 90-day rule. The wife petitioned for divorce in England in January 2007 and although the husband accepted the marriage was over he had not petitioned for divorce in Spain though he argued that the as the assets were in Spain it would be easier for the courts to make a decision. Counsel for the wife argued that she was both domiciled and habitually resident in England and therefore the English courts could have jurisdiction.

In this judgment, Bennett J first reviews the issues of domicile and found that neither the husband nor the wife had acquired a new country of domicile primarily as neither had made an “unequivocal abandonment” of England. On that basis he found that the English court had jurisdiction to hear the proceedings.

He then went on to consider the issue of the wife’s habitual residence as counsel had devoted considerable time to arguing the issue. On this issue, he found that the wife was habitually resident in Spain partly because in her petition she was seeking a home in Spain and a pied a terre in England. This demonstrated, among other things, that she did have some commitment to living in Spain. Had she not been able to rely on the common domicile of the couple in England, then he would have ruled the other way.

Bennett J also comments about the “somewhat absurd situation” where the proceedings, if heard in Spain, would have been conducted according to English law whereas the best place to decide financial provision under English law is an English court. He therefore expressed relief that he could reach the decision that he did. 

_________


NEUTRAL CITATION NUMBER: [2007] EWHC 3315 (Fam)

IN THE HIGH COURT OF JUSTICE Case No. LV07D00059
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Wednesday, 19th December 2007

Before:

THE HONOURABLE MR JUSTICE BENNETT

Between:

S M (Applicant)

-v-

I M (Respondent)

______________________

Counsel for the Applicant: Malcolm Sharpe

Counsel for the Respondent: Kevin Reade
______________________

JUDGMENT APPROVED BY THE COURT

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1. On 17 January 2007 the wife filed a petition for a divorce against the husband in the Liverpool County Court alleging that the English court had jurisdiction.  The husband denies that the English court has jurisdiction to entertain these proceedings.  Thus that issue comes before me for adjudication. 

2. It is common ground between the parties whether the English court has jurisdiction is to be decided according to the provisions of Article 3 of Counsel Regulation (EC) 2201/2003 commonly known as Brussels II Revised.  That Article provides as follows:

 “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 in so far 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 or her ‘domicile’ there;
 (b)  Of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of 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.”

3. Mr Sharpe, counsel for the wife, has submitted that the English court has jurisdiction by virtue of the sixth limb or indent of Article 3(1)(a) and/or by virtue of Article 3(1)(b); that is either that she was habitually resident for at least six months immediately preceding the presentation of her petition and she is domiciled here, or that both she and the husband are domiciled here. 

4. Mr Reade, counsel for the husband, contends that, since the parties moved to Spain in 2003, both parties have not only been habitually resident in Spain but also acquired a domicile of choice in Spain.

5. Despite the end of the marriage in 2006, despite there being proceedings for its dissolution in England since January 2007 and despite the husband’s implicit assertion that the proper jurisdiction for divorce proceedings is Spain, the husband has never sought to bring proceedings there.  Despite the order of Mr Justice Ryder of 4th October 2007, neither party has filed a report from an expert in Spanish matrimonial law stating what law, that is to say English or Spanish, a Spanish court would apply to the determination of financial provision.  Nevertheless, Mr Reade has realistically accepted that in the light of the Court of Appeal decision in Moore v Moore [2007] EWCA Civ 361, and in particular paragraph 6 and 67 of the court’s judgment, a Spanish court will apply English law.  If then I am driven to find that the English court has no jurisdiction to hear the wife’s matrimonial proceedings, these parties will remain married and will be unable to resolve their financial differences, despite both accepting that the marriage is at an end.  Furthermore, if proceedings are begun in Spain, it is common ground, as I have said, that the Spanish court will apply English law to determine the real issue in this case, which is what financial provision, if any, is to be made by the husband for the wife.  The Spanish judge will thus, most likely, need the assistance of expert evidence on behalf of the parties as to what financial provision an English judge would be likely to make, applying English law.  The parties would thus not have the most suitable body to decide upon financial provision under English law, namely an English court.  This of course is not a criticism of the Spanish court, merely, I would have thought, a statement of the obvious. 

6. The husband told me in evidence that the practical reason why he wants the disentanglement of the assets to be negotiated and/or decided in Spain is because the assets are there and Spanish lawyers can more easily resolve it.  He further told me that if the wife’s proceedings here are dismissed for want of jurisdiction, he will begin divorce proceedings in Spain.  In my judgment this is really not an answer to my question, which I posed at the very beginning of this hearing, which is why the husband is seeking to have the English proceedings dismissed.  He accepted that the marriage is at an end and that he wants a divorce.  I must say that I have to suspect that, as in Moore v Moore, the husband’s attitude may be driven by tactical considerations, namely either to wear down the wife and/or in an expectation that a Spanish judge would award the wife significantly less financial provision than an English judge. 

7. On 5 May 2002 the parties were married in England.  The wife was then 40 years old and the husband 49.  Each had been married before.  In 1981 the wife married RB, by whom she had two children, S, and N, both now adults.  However, at the time of the wife’s marriage to the husband in 2002, S was 15 and N 12 years old.  The wife obtained a decree absolute against Mr B in February 1999. 

8. As for the husband, he had married a girl called R by whom he had two children, now in their 30s.  He next married M, by whom he has had two children, namely SN, now aged 22, and L, now aged 18.  At the time the wife and the husband married, SN was aged 17 and L 14 years old.  Both parties are and have always been nationals of this country.  Both were born and brought up here and until 2003 lived all their lives here.

9. In 1999 the wife and the husband met.  The wife had a furniture business in L.  The wife moved into the husband’s home in Merseyside.  She rented out a property she owned. 

10. The husband was interested at that time in three companies.  As I understand it, he was the majority shareholder in each.

11. It is common ground that in February 2003 the parties moved to Spain.  Each sold their respective English properties.  For the wife the property produced £240,000 net and the sale of her company £245,000 net.  The wife says that the husband bought all the issued share capital in one of the companies, a company registered in Gibraltar.  She says that the funding of that company amounted to about £1.307 million, of which the husband put in his net proceeds of sale from his property, a lump sum from his pension, together with other resources.  The wife says she contributed all of the monies from her business and the sale of her property. 

12. According to the wife the company invested in Spanish properties through a Spanish company.  The latter company, according to the husband, invested in some six properties, including Villa P, in A, where the wife now lives.  That is the address which the wife has given in each of her statements in these proceedings in 2007 of 5 March, 1 August and 18 September.

13. In 2003 to early 2006 the parties lived in a house at L N.  Prior to moving to Spain the parties purchased “off plan” a property in A.  They lived at L N and after the separation the husband went to live in A. 

14. In August 2003 the husband purchased in SN’s name a property in M for £115,000.  SN would then have been about 17 or 18 years old and the wife believes, in my judgment correctly, without funds of his own to buy a property.  A large extension was built, including a large kitchen and bathroom, all of which was funded by the husband.

15. In 2004 there was purchased, the wife then believed in joint names, a property in  County Mayo in Ireland. 

16. On 1 October 2005 the husband says he transferred all his shares in the companies to which I have referred,  to SN, which, he says, more or less coincided with SN’s 21st birthday in May 2006.

17. According to the wife, though this is disputed by the husband, the husband has also, prior to March 2007, purchased properties in Skelmersdale, again in SN’s name, and has an interest in C Limited, a company that owns 56 flats of which SN is a director.  As I have said, the husband told me in evidence that he has no financial interests in England at the present time. 

18. When the parties went to Spain in February 2003, S and N came with them.  S found life in Spain difficult and returned to England after a mere two weeks.  N, according to the wife, also found life difficult.  In September 2004 she changed schools in A and thereafter went to an English school, but, by July 2005, she did not wish to remain in Spain and returned to England to live with her grandparents. 

19. The pattern of the parties’ life after the move to Spain was, I find, as follows.  The husband pursued his business activities in both England and Spain and Gibraltar.  He retired as a director of the three companies, but he remained as a consultant to one until December 2006.  He remained the majority shareholder in each of the three companies until 1 October 2005.  I have little doubt that he remained the driving force behind each of those companies, at least until that date and perhaps a little after it.  Significantly, he purchased the M property with his own money and extended it with his own money.  I suspect that it was put into SN’s name not because he had gifted it to SN, indeed there was no evidence of that, but because he wanted to have a property in England to use when he visited England without alerting, in particular, the Inland Revenue in whose eyes he had purported to become a tax exile.  For tax reasons the husband should not return to England for more than 90 days in any one year without him running the risk of becoming subject to United Kingdom tax.  The wife told me, and I accept, that each of them kept clothes and belongings in the M property so that that minimised what they had to bring from Spain on their visits.  Furthermore the wife had a key to the house and each party had free and unrestricted access to it. 

20. The wife accepts that the husband was scrupulous in not exceeding the 90 day limit on his visits to the United Kingdom. 

21. After the parties had purchased the Irish property, they paid periodic visits to it.  Neither the husband nor the wife is registered as residents in Spain.  By the time they moved there, I am told and accept, there was no requirement that they should so register but there was an option to do so which neither exercised.  The property in A was registered in their names and that entitled them to vote in Spanish elections.  The husband has not paid any national taxes, such as capital or income taxes, in Spain.  He has paid local taxes.  Each party has had and has bank accounts in Spain.

22. The parties at all times retained their British nationality and passports.  Neither ever contemplated applying for Spanish nationality.  The husband told me in evidence that he did not wish to lose his British nationality or give up his British passport. 

23. The wife described the move to Spain as being for tax and business reasons.  She disputed that the move was in any way permanent.  At paragraph 2.7 of her statement of 5 March 2007 she said that after a period they might move on to the United States of America.  In paragraph 3.1 of her statement of 1 August 2007, she said that the husband never had any intention to live in Spain permanently “only for Spain to be our main residence for the next period of our lives.” 

24. In his statement of 3 August 2007 the husband asserted that it was their joint plan to move permanently to Spain.  Paragraph 15 of his statement summarises his case:

“Both the applicant and I moved to live in Spain on a permanent basis.  We had no plans to return to the United Kingdom.  We intended to remain in Spain indefinitely.  This remains my intention.  As far as I am aware the applicant intends to remain in Spain.  We both intended to make our home in Spain for life.  We were hoping to achieve a better quality of life for the rest of our lives.”

25. However, in his cross-examination the husband significantly retreated from those assertions.  He told me that they were “hoping” to leave England on a permanent basis but that in fact they had not left England on a permanent basis.  When asked by Mr Sharpe why he had chosen Spain in preference to any other country to live in, he answered because of the Spanish climate and because he had friends there.  He told me, when cross-examined, that he did not think he would stay in Spain for the rest of his life.  He was going to remain in Spain as his home for the time-being because of the nice climate and his circle of friends there. 

26. The wife in her evidence was equally forced to retreat from a position where she said in evidence that by January 2007 she wanted her main home to be in England.  But her March 2007 statement said in the last paragraph that she sought “long term ancillary orders” of “a reasonable home in Spain and a pied-à-terre in England” which, as Mr Reade pointed out, was the complete opposite.

27. The wife, I am satisfied, visited the United Kingdom to see her daughters and elderly mother.  She described the visits as once a month or once every six weeks.  She, of course, in contrast to the husband, was not restrained by a 90-day, or indeed, any time limit.  She remained registered with her English general practitioner and has received medical treatment in England.  She accepted that the husband paid the equivalent of national insurance in Spain which entitled her to medical treatment there.  Nevertheless she preferred to seek medical treatment in England. 

28. In her September 2007 statement the wife tried to paint a picture of her visits to England from about the end of June 2006.  I have to say it is not easy to understand but, having heard the wife give evidence, the pattern seems to be as follows.  On 28 June the wife came to England for one of her daughter’s birthday.  She stayed for two weeks.  In August she came to England with her husband and stayed at the M property for approximately 10-14 days.  Between 7 November and 10 December the wife was in England for about 29 days.  In January 2007 prior to the date of the presentation of the petition, ie 17 January, she was in England for about two weeks during which she received medical treatment.  By 17 January she was back in Spain.

29. After the parties separated in October 2006, the wife told me that, although the husband paid the bills on the apartment that she now occupies in Spain, she had no other means of support and was forced to take a rather lowly job in Spain. 

30. It is common ground that each of the parties’ domicile of origin is English.  It is convenient at this stage to analyse whether either party acquired a domicile of choice in Spain.  So far as the wife is concerned, Mr Reade, when asked by me both at the beginning of the hearing and in final submissions, whether he was asserting that at or after the move to Spain the wife had acquired a domicile of choice in Spain, replied that he was.  He broadly argued that she had lived there for four years, that she had no business interests in England, that her home was in Spain.  She was a shareholder in and the legally recognised “administrator” of M P, the Spanish company.  Furthermore, she left England for Spain with her husband for fiscal and emotional reasons and lived with him there until the marriage broke down in October 2006.

31. Having carefully considered his submissions, I consider that they are flawed.  In the wife’s petition she positively averred that she was domiciled in England.  Nowhere has the husband sought to contradict that assertion.  It is certainly not contradicted in any of his statements.  In his skeleton argument of 29 September 2007, Mr Sharpe specifically stated at paragraph 10 that the wife had always retained her domicile of origin.  Mr Reade’s skeleton argument dealt solely with habitual residence and did not in any way controvert the assertion that the wife had always retained her domicile of origin.  Finally, in the husband’s examination-in-chief in answer to a very specific question by Mr Reade in examination-in-chief, stated, candidly, I thought, that he could not answer for the wife’s domicile.

32. The law on change of domicile has been pronounced upon in many authorities.  No useful purpose is to be gained by reviewing them.  Suffice it say that the burden of proof that the wife’s domicile of origin has been lost lies on the husband and must be proved beyond a mere balance of probabilities.  In Moynihan v Moynihan [1997] 1 FLR 59 Sir Stephen Brown, P., said at page 65:

“Counsel for the second intervener, Jiuna Moynihan, has made detailed submissions on the question of Lord Monaghan’s domicile.  He has presented a helpful and detailed skeleton argument in which these matters are succinctly summarised.  He has based his submissions principally upon the state of the law in Halsbury’s Laws (Butterworths) Volume 8(1), paragraph 697:

‘Where a person resides in a country as a result of the pressure of circumstances, his residence will be in some measure involuntary.  In such a case where there is no intention to make a permanent home in the country of residence, the previous domicile will remain unchanged.  The greater the pressure, the more likely it is that the individual will retain his earlier domicile.’ 

He has reminded the court of the dictum of Sir Jocelyn Simon, P., in Henderson v Henderson [1967] Probate 77, 80: ‘The standard of proof required to displace the domicile of origin goes beyond a mere balance of probabilities.’  He referred to a large number of authorities but there is no issue between the Queen’s Proctor and the second intervener as to the principle of law involved.  There is no doubt that a domicile of origin continues unless ‘a fixed and settled purpose’ to abandon the first domicile and to acquire another as the sole domicile is clearly shown.  See Wymans v Attorney General [1904] A.C. 287 and per Ramsay v Liverpool Royal Infirmary [1930] A.C. 588, 595: ‘Mere length of residence by itself is insufficient evidence from which to infer the animus but the quality of the residence may afford the necessary inference.’”


33. In Irvin v Irvin [2001] 1 FLR 178 Cazalet J. put it this way at page 189:

“As to the appropriate test of the change of one domicile of choice to another, the parties agreed that the court may conclude that the standard is the civil standard of proof; but, in the light of the gravity of the issue involved, the judicial conscience will need particularly convincing evidence to be satisfied that the balance of probabilities has been tipped.  This formally allows for the flexibility of approach which is required in relation to the standard of proof necessary to deal with the different questions.”

The question was also raised by counsel as to whether the standard of proof was less onerous on the wife to show abandonment of the English domicile, rather than the acquisition of the Dutch domicile of choice.  Reference was again made to Re Flynn (Deceased); Flynn v Flynn [1968] 1 WLR 103.  At 115, Megarry, J, said as follows:

“The standard of proof is, I think, the civil standard of the balance of probabilities, subject to the overriding consideration…that so serious a matter as to the acquisition of domicile of choice, or for that matter I think the abandonment of a domicile is ‘not to be likely inferred from slight indications or casual words.”

So it is against that background I must look for cogent evidence to satisfy me that, both in regard to abandonment and regard to acquisition of a further domicile of choice, the husband has abandoned his domicile of choice in England by an unequivocal act of abandonment and an unequivocal intention to abandon his domicile in England; and, likewise, the further tests which I have referred to as stated in regard to the acquisition of a domicile of choice, I look both to his intention, his state of mind and to his acts in so doing.

34. In my judgment the husband comes nowhere near establishing that the wife has abandoned her domicile of origin in England and/or has acquired a domicile of choice in Spain.  Even taking Mr Reade’s submissions on this point at face value, I do not consider that the husband has established that the wife is now, or has ever been, domiciled in Spain.  Her own evidence was firmly to the contrary.  She has been consistent throughout these proceedings that she always was and remains domiciled in England.

35. So far as the husband’s domicile is concerned, the wife does not seek to prove that the husband has been domiciled anywhere other than in England, his domicile of origin.  Rather, it is the husband who seeks now to allege that he has acquired a domicile of choice in Spain.

36. I accept that the wife’s petition does not allege that the husband is domiciled in England.  However, I have to say that the relevant paragraph, namely paragraph 2.3, has been drafted by somebody who either did not read the Regulations carefully and/or did not understand it.  Mr Reade readily, and fairly, I thought, agreed that that paragraph, pleading as it was to the English court’s jurisdiction, was a nonsense.  In my judgment the mind of the draftsman was plainly not in sync with Article 3(1) of the Regulation. 

37. In his skeleton argument of September 2007, Mr Sharpe flagged up that one of the bases for the English court to be able to be seized of this matter was that “the wife and the husband are each domiciled in the UK.”  However, it is fair to point out that in paragraphs 9 to 13 of that document, he seemed to stop rather short of arguing, or at least arguing with much conviction, that the husband was always domiciled in England.  The thrust of his skeleton argument thereafter went to the wife’s habitual residence. 

38. For his part, Mr Reade’s skeleton argument did not deal with the husband’s domicile at all, perhaps because he may have thought that the Spanish domicile of the husband was not in issue.  Again, at the very beginning of the hearing, I specifically asked Mr Sharpe whether he was submitting that both the wife and the husband were domiciled in England as at 17 January 2007.  He replied in the affirmative, though he made it quite clear that his primary case as to jurisdiction was founded on the habitual residence and domicile of the wife.  In the light of that, I must say that I was rather surprised that when it came to the husband to give his evidence, little, if anything, was said by him about either him abandoning his domicile of origin and/or acquiring a domicile of choice in Spain.  He did say, it is true, that he would live in Spain “for the foreseeable future” and Mr Reade said that his evidence was largely contained in his statements, but his statements are focused, in my judgment, on rebutting the wife’s case as to her habitual residence.

39. In any event, it was the husband’s cross-examination, which I have described, which emboldened Mr Sharpe to submit that the husband had not either abandoned his domicile of origin and/or acquired a Spanish domicile of choice.  He submitted that a mere wish to live in a sunny and warm climate and to enjoy the company of friends was hardly enough to establish that the husband had a settled intention to live in Spain permanently.  Indeed, as I have said, the husband retreated significantly from his statements.  He did not think he would stay in Spain for the rest of his life, he told me.  The fact that he has never sought Spanish citizenship is, in my judgment, relevant.  It is, of course, not in itself conclusive, but it is a persuasive factor.  His evidence that he would not give up either his British passport or his British nationality is again a persuasive factor but not in itself conclusive.  His purchase of an English property in M, again is a relevant and persuasive factor though, in itself, not conclusive.  Similar considerations apply to his shareholdings in the three companies and his consultancy. 

40. The husband, I accept, has a home in Spain and has business interests there and in Gibraltar.  He prefers, at least for the time-being, to live in Spain.  He is even now no doubt wary, although he has no business interests in England, of returning here more frequently in case the Inland Revenue challenge his tax exile status. 

41. Having looked at the matter carefully, my reading of the husband’s true position is that he is content to remain in Spain pro-tem, but that he does not have and has not had a settled intention to live in Spain permanently.  I think the reality is that he is undecided and is keeping all his options open, which include a return to this country. 

42. Bearing in mind that it is to his advantage to say that he is domiciled in Spain and thus defeat one of the limbs upon which jurisdiction of the English court could rest, it is incumbent upon this court to be wary of his assertions and only to accept his case if persuaded that it is soundly based.  For the reasons I have given, I am not so persuaded.

43. Accordingly, I find that both the wife and the husband were domiciled in England for the duration of their lives and specifically as at 17 January 2007, the date of the filing of the wife’s petition for divorce in England.  Thus I find on that ground that the English court does have jurisdiction. 

44. It is therefore tempting to conclude the judgment at this point as it is not strictly necessary for me to adjudicate upon the other limb of the wife’s case, namely that, given that I have found she had always been domiciled in England, whether she has satisfied the habitual residence test in the Regulation.  But that would be churlish of me.  The parties have spent much time and trouble exploring the issue of the wife’s habitual residence and want a decision upon it.  In my judgment, they are entitled to it.  

45. First it is necessary to establish what is meant by “habitual residence” in Article 3.  In that respect I can conveniently refer to a decision of Munby J. in Marinos v Marinos [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018.  In that case the issue was whether the wife was habitually resident in England for at least six months prior to the presentation of her petition for divorce.  The judge decided that she was.  Her domicile was not in issue.  In the course of his judgment he reviewed relevant European authorities as to the meaning of “residence” and/or “habitual residence” arising in Regulations other than Brussels II Revised because there was no decision of the European Court of Justice directly in point in respect of Article 3 of Brussels II Revised. 

46. I have no wish to travel over the same ground, as for the purposes of the instant case I am content to adopt the analysis of Munby J., in particular his finding at paragraph 33 of his judgment:

“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 paragraph 32 of his report:

‘the place where the person had established, on a fixed basis, his permanent or habitual centre of interest 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,

‘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.’”

I shall return to Dr Borrás’s report in due course.

47. Munby J. then decided two further points of law, one with which I respectfully agree and the other about which, equally respectfully, I am somewhat doubtful.  The first point was whether, for the purpose of the regulation, someone can be habitually resident in two different countries at the same time.  Munby J. decided that they could not for the reasons he gave in paragraphs 39 to 44 inclusive of his judgment.  I agree with his analysis and would follow it. 

48. The second point was whether there is some distinction between what is referred to in Article 3(1) as being “habitually resident” and what is referred to as having “resided” in a member state.  In that case the husband contended that “resided” meant habitually resided.  The wife contended that it connoted something less than habitual residence, ie that it was enough that there was a pattern of occupation of a base in a country.  Munby J. decided in favour of the wife’s submission.  His reasoning appears between paragraphs 46 and 49 respectively of his judgment.  In essence it is that what is required by the regulation are two things: (i) habitual residence on a particular day, and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period. “Residence” means just that; it refers to residence and does not connote habitual residence.  This reasoning finds its conclusion, so far as the facts are concerned, in paragraph 85 of his judgment, but I shall read also paragraph 84 to put it in context:  

“84. I find, therefore, that the wife was both resident and habitually resident in this country at all material times from (say) September 2004 onwards.  On this basis she was entitled to petition in this country when she issued her petition on 1 February 2007. 

85.  Even if I am wrong in this, there is in my judgment another basis upon which the wife is entitled to succeed.  She was, for the reasons I have already given, resident in this country at all times from September 2004 onwards, in particular resident in this country for at least six months before she issued her petition on 1 February 2007.  But she was also, in my judgment, habitually resident in this country on 1 February 2007 even if not before then.”

49. Strictly speaking, in the case before me it is perhaps unnecessary for me to go into this matter.  I say that because the wife’s case is and has always been that she has always been and remained habitually resident in England, notwithstanding the move to Spain.  Nevertheless what troubles me about the conclusion of Munby J. on this point is that I do not think it accords with the proper construction of Article 3(1) and does not seem to me to explain why the words “if he or she resided there for at least six months immediately before the application was made and… has his or her domicile there”, are there at all.  I ask rhetorically why in the fifth and the sixth indents in Article 3(1)(a) do the words “if he or she resided there for at least (a period of one year or six months) immediately before the application was made” appear at all, and why in the sixth indent is there another set of words relating to nationality, or in the case of the United Kingdom and Ireland relating to domicile of the applicant? 

50. The answers to those questions are, I believe, to be found in paragraph 32 of the explanatory report prepared by Dr Borrás which is quoted in full in paragraph 26 of Munby J.’s judgment in Marinos v Marinos.  I agree with Munby J. that Dr Borrás’s remarks, although directly referable to Article 2 of Brussels 1, are in fact equally applicable to Article 3 of Brussels II (Revised).  Paragraphs 26 and 27 of Munby J.’s judgment in Marinos v Marinos reads as follows:

[26.] “In para [30] it is said that:

‘The grounds adopted are based on the principle of a genuine connection between the person and a Member State.’

The final two limbs of paragraph 1(a) of the Regulation are considered in para [32]:

 ‘Both these provisions allow forum actoris in exceptional cases on the basis of habitual residence combined with other elements.  That is why the fifth indent allows jurisdiction to lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year.  Since some Member States did not find the rule set out in those terms sufficient and bearing in mind the frequency with which the spouse's new residence is in the State of nationality or of 'domicile', in the sense in which this term is used in the United Kingdom and Ireland, the sixth indent adds the possibility of having the matrimonial proceedings heard by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality or of domicile as defined in the United Kingdom and in Ireland. That provision was introduced as a result of the political compromise adopted in December 1997 following a formal statement by some States that acceptance of that forum was an essential prerequisite of vital importance for an overall compromise solution.

The solution takes into account the situation of the spouse who returns to his or her country but does not mean establishing a ground based solely on the forum of the applicant: on the one hand, the existence of nationality or 'domicile' demonstrates that there is an initial connection with that Member State; on the other hand, in order to initiate proceedings in that Member State, he or she must have resided there for at least six months immediately before the application was made.’

[27.] So much for the general background.  What follows is the crucial part:

‘The last requirement led to a discussion of establishment of habitual residence, taking account of the situation of the spouse who returns to the country of origin as a consequence of the breakdown of the marriage.  The existence of the connection will be assessed by the court.  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'.  Other proposals were therefore rejected whereby it would be sufficient for the applicant to have his or her habitual residence there for a total of at least one year in the five years immediately before the application was made, even when combined with nationality or 'domicile'.’

 It is therefore plain that the intention was that the phrase ‘habitual residence’ in this context (Brussels II and now Brussels II (revised)) should have the meaning given to it in the case-law of the ECJ to which I have already referred.”

51. It seems to me that the critical points made by Dr Borras are these.  First, discussion of the delegates centred around the situation of the spouse returning to his/her country of origin as a consequence of the breakdown of the marriage.  Second, the grounds adopted in the Regulation are based on the principle of a genuine connection between the person and the Member State.  Third, the existence of that connection will be assessed by the court.  Fourth, the solution in the Regulation takes into account the situation of the spouse returning to his or her country but does not mean establishing a ground based solely on the forum of the applicant.  Fifth, nationality or, in respect of the United Kingdom and Ireland ‘domicile’, demonstrates that there is initial connection.  But, sixth, that is not enough.  Residence for at least six months prior to the presentation of petition is also necessary.  Seventh, a proposal was made, but rejected, that jurisdiction can be established by the applicant, establishing habitual residence “for a total of at least one year in the five years immediately preceding the presentation of the petition.” 

52. Thus, what, as I understand it, the fifth and sixth indents of Article 3(1)(a) of the Regulations seek to do is to compel the court, in assessing the connection of the applicant to the jurisdiction sought to be embraced, to look at two fundamentals.  The first is whether the applicant is a national of the relevant member state or, in the case of the United Kingdom and Ireland, whether the applicant is domiciled there.  But, second, since an applicant returning to the United Kingdom either retained his or her domicile of origin, ie the United Kingdom, notwithstanding that he or she lived in a foreign country having left the United Kingdom or upon return to the United Kingdom there and then abandoned his or her domicile of choice and reverted to his or her domicile of origin, ie the United Kingdom, then the Regulation is at pains to make it clear that what else is required to establish jurisdiction in the United Kingdom is habitual residence of the applicant.  As Dr Borrás said at paragraph 28 of the explanatory report: “Point (a) uses habitual residence in order to determine international jurisdiction.” 

53. But habitual residence for what period of time and for what period of time in relation to the presentation of the petition?  The answer is not less than six months immediately preceding the presentation of the petition.  Habitual residence may be shown to have existed for more than six months, as indeed Munby J. found in Marinos v Marinos, see paragraph 78 to 80 inclusive of his judgment.  But the minimum period of habitual residence is six months and it must run for at least six months prior to the presentation of the petition.  If then I am correct on this point there is no need to insert into the Regulation words as suggested in paragraph 46 of the judgment in Marinos v Marinos

54. Having expressed these doubts, I should say that this particular point was not fully argued before me.  That is absolutely no criticism whatever of the very able counsel who have appeared for both parties.  I accept that my expiation on this topic may possibly not be justified and, indeed, may even be unsound.  I can only plead in mitigation for any error on my part that, having been perched almost at the top of the skyscraper which is the Civil Justice Centre in Manchester, I am unaccustomed to such rarified air. 

55. As I have said, the wife’s case is that, notwithstanding the move to Spain in 2003, her habitual residence remained in England and did not change at any time prior to 17 January 2007.  It is not the wife’s case that she ceased to be habitually resident in England after the move to Spain but then at some point prior to 17 July 2006, ie not less than six months before the date of her petition for divorce, reverted to being and continued thereafter to be, habitually resident in England.  Mr Sharpe’s case starts from the position that up to the move to Spain in 2003, the wife was undoubtedly habitually resident in England but in 2003 she sold her house and business in England and moved with the husband and her two children to Spain.  At that time her only ties, leaving aside nationality and passports, in England were her mother and her extended family, and of course her wish to remain medically treated in England.  S returned very soon to England, the mother remained in Spain.  The husband and wife together purchased a home, L N, which was their matrimonial home.  I have to say I am not overly impressed with Mr Reade’s point that the wife was a shareholder in and the “administrator” of M P.  I very much doubt that she took any active part in the business and her position no doubt suited the husband.  Nevertheless, in so far as it is a factor, it is perhaps a small indicator.  Nor is the opening of a Spanish bank account anything other than a minor indicator. 

56. However, the wife was registered to vote in the Spanish elections.  She could, if she had wished, access free medical care as the result of the husband paying the equivalent of English national insurance contributions.  The wife drove a car with local number plates.  In 2005, when N returned to live in England, the wife no doubt had a painful choice to make.  Did she stay with the husband or was she to go to England and look after N fulltime, or was she going to split her time, reasonably equally, between the husband in Spain and N in England?  She chose to stay in Spain.  As far as I can see, her visits to England after N’s return stayed at much the same frequency and duration as before. 

57. On the other hand, it is undoubtedly the case that the wife, and indeed the husband, did not seek to become Spanish citizens.  Each retained their British nationality and British passports.  The husband was careful to avoid, I am sure quite legitimately, paying any income or capital taxes in Spain.  The wife retained her registration with her English general practitioner.  The husband and wife regularly and frequently, so far as the 90-day limit allowed, visited England and stayed in the M property.  I am satisfied that that property has at all times been the husband’s property; he paid for it, and for the extension.  The husband and wife undoubtedly had free and unhindered access to it and left in that property enough clothes and belongings to use during their visits.  The wife of course visited her children and mother and came for medical treatment.

58. During her evidence the wife made two seemingly important observations, both of which I am sorry to have to say were untrue.  First, she said that “the plan” on moving to Spain was to make money and then return to England to buy properties here.  That assertion appears nowhere in any of her statements.  At paragraph 2.7 of her March 2007 statement she said that they intended to set up a property business in Spain, move on to the United States of America, but spend a portion of the year in England.  When that was put to her by Mr Reade, she agreed that what she had said in evidence was probably not their intention then. 

59. The second matter was that she said in evidence that she had no commitment to Spain and in 2006 wanted to return to England.  She wanted to be back home, as she put it, and have a holiday home in Spain.  However, as Mr Reade pointed out to her in his cross-examination, that appeared to be the exact opposite of what she said in her statement of March 2007, namely that she sought “long-term ancillary orders” encompassing a reasonable “home” in Spain and a “pied-à-terre” in England.  Furthermore, in each of her statements of March, August and September 2007, the wife gave as her address the Spanish apartment.  In so far as she has given an English address, it first appears in her statement of November 2007 in support of her application for maintenance pending suit, and is no more than a “care of” address.  I reject her evidence that she has no commitment to Spain.  The fact that she seeks sufficient monies from the husband to buy a “home” in Spain, and not in England, is in my judgment a strong indicator as to the country where the wife herself perceives to be the habitual centre of her interests.

60. Finally, it may have been an unintended slip in the draftsmanship, but the assertion in paragraph 2.3 of the wife’s petition that “both parties were habitually resident in England until moving to Spain in 2003”, is rather revealing.

61. For completeness sake, I should say that I am unimpressed with the wife’s assertion that in the months before 17 January 2007 she was prevented by lack of cash and/or the husband allegedly removing her passport from coming to England more often.  I am sure there were spats between them in the process of the marriage breaking down, but equally I am satisfied they did not prevent the wife’s free movements.

62. Although the wife did obviously retain connections with England, for example her nationality and her family and frequent visits, the real focus, I find, of her life was with the husband in Spain.  Accordingly, had the wife been unable to rely upon Article 3(1)(b), ie the parties’ common domicile in England, I would have dismissed the petition for want to jurisdiction.  As it is, I find that the English court does have jurisdiction and thus the divorce and ancillary relief proceedings will continue here.  I am relieved to be able to so find because the consequences of declining jurisdiction would have been a somewhat absurd situation, as I explained at the beginning of this judgment. 
[Judgment ends]