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Chandler v Chandler [2011] EWCA Civ 143

Application for permission to appeal against the striking out of a divorce petition on the basis of lack of jurisdiction. Application refused.

The applicant wife had had her petition for divorce struck out by Baron J for want of jurisdiction. She applied for permission to appeal, which was provisionally refused. She then renewed her application at an oral hearing.

The wife claimed that she had acquired a domicile of dependency in Gibraltar, where she had been married and where her husband had his business interests, and that since Gibraltar was a dependent territory, the court should apply the law of Gibraltar in consideration of the question of her domicile. Though the concept of a domicile of dependency had been statutorily abolished in England and Wales in 1973, it had not been similarly abolished in Gibraltar until the provisions of the Matrimonial Causes (Amendment) Act 2009.

Thorpe LJ examined Baron J's consideration of this issue, which had determined that, in deciding a person's domicile for the purposes of jurisdiction, the applicable law is the lex fori, namely the law of England and Wales, and that it was therefore not possible for the court in this jurisdiction to apply the law of Gibraltar under the provision of Article 3.1(b) of Brussels II Revised. He confirmed that this was the correct analysis, stating that "it is a very important feature of our relationship with the developing family law of Europe that we tenaciously uphold our principle that only the lex fori applies in the courts of England and Wales".

He therefore endorsed the provisional refusal and refused the application.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square

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Case No: B4/2010/2276
Neutral Citation Number: [2011] EWCA Civ 143
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE BARON)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 27 January 2011

Before:
LORD JUSTICE THORPE

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Between:

CHANDLER 
Appellant

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CHANDLER 
Respondent

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(DAR Transcript of
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Mr C Marsh-Finch (instructed by Messrs Creed Lane Law Group) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment
(As Approved by the Court)
Crown Copyright©

Lord Justice Thorpe:
1. The applicant was married to the respondent in 2004.  The marriage was tempestuous and resulted in the filing of a petition for divorce in this jurisdiction.  The petition was struck out for want of jurisdiction by order of Baron J, explained in a judgment of 14 September 2010. 

2. An application for permission to appeal was provisionally refused by Sir Mark Potter on 12 November and this is the renewed application at oral hearing advanced by Mr Marsh Finch.  I say at once that Mr Marsh Finch has presented his case impeccably.  He has filed a statement pursuant to the practice direction which focuses on the reasoning of Sir Mark Potter and advances the case that both Sir Mark and the judge below were wrong in law.  He quite rightly draws attention to Article 3 of Brussels II Revised where the broad jurisdictional basis for divorce is defined including the provision in Article 3.1(b) that an alternative basis for divorce is in the case of the United Kingdom and Ireland the domicile of both spouses.  He draws attention to Article 66 which decrees that with regard to states that have two or more legal systems, any reference to 'domicile' shall refer to the territorial unit designated by the law of that state.  He correctly points out that Gibraltar is a dependent territory.  It is a member state of Europe as a dependent territory.  It is part and parcel of the United Kingdom but applies its own system of law, just as Scotland applies its own system of law whilst being within the United Kingdom. 

3. The concept of domicile of dependency was abolished statutorily in 1973 in England and Wales but was not similarly abolished in Gibraltar, so that it is said that the wife acquired a domicile of dependency until Gibraltar effectively incorporated the consequences of the regulation, which of course applied throughout the member states directly without the need for any internalisation.  So all that leads to the submission that, in answering the question was the wife domiciled in the United Kingdom for the purposes of jurisdiction as at the date of the filing of her petition, what was the law to be applied?  The law of England and Wales, where she has petitioned, or the law of Gibraltar where she was married and where her husband has his business interests?  I add by way of parentheses that it seems that the parties' habitual residence has been in Spain and that there are doubts as to the domicile of the husband although there must be a strong leaning in favour of his English domicile of origin. 

4. This point was addressed confidently by the trial judge, Baron J.  She recognises that the legal system in Gibraltar is distinct and that the domicile of dependency was only abolished in that jurisdiction by the provisions of the Matrimonial Causes (Amendment) Act 2009.  The judge then directed herself to leading authorities, Dicey, Morris & Collins on the Conflicts of Law, Cheshire North & Fawcett Private International Law, Rayden and Jackson on Divorce and Matrimonial Matters, all of which confirm that in deciding a person's domicile for the purposes of jurisdiction the applicable law is the lex fori, namely, the law of England and Wales.  It was not possible for the court in this jurisdiction to apply the law of Gibraltar under the provisions of Article 3.1(b).

5. I am quite satisfied that the judge was right in that conclusion.  It is a very important feature of our relationship with the developing family law of Europe that we tenaciously uphold our principle that only the lex fori applies in the courts of England and Wales.  We have exercised our right to abstain from developing European family law that would require us to apply the law of some other jurisdiction.  I think that the proposition identified by the judge is one of long standing, I think it is a clear proposition and I think that the contention that a petitioner in this jurisdiction asserting domicile is to be judged by the law of some other territory, whether it be dependent or independent, can not be accepted.  So for all those reasons I think Sir Mark Potter was right to refuse this application and I endorse his provisional refusal. 

Order: Application refused