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Habitual Residence - Habitual Problems

Joshua Viney, pupil at 1 Hare Court, considers the implications of the Court of Appeal judgment in Tan v Choy and the ongoing debate concerning the fifth indent of Article 3 of Brussels IIR.


Joshua Viney, Pupil 1 Hare Court

The Court of Appeal handed down judgment in Tan v Choy [2014] EWCA Civ 251 on 19 March 2014. This is the latest case concerning jurisdiction under Article 3 of Brussels II (Revised) [Council Regulation No. 2201/2003].

The Husband sought to litigate matrimonial matters arising from the impending dissolution of his marriage in England whereas the Wife wanted to litigate in Malaysia.

The Court of Appeal considered the Wife's appeal of the decision of HHJ Horowitz (sitting as a Deputy High Court Judge) (unreported) that first, the Husband was habitually resident under the fifth indent of Article 3(1)(a) of Brussels IIR for the 12 months prior to the application and, second, that failing that he was habitually resident on the day of his application and resident for the 12 months prior to the application. 

In a short judgment the court dismissed the Wife's appeal but did not rule on the correct interpretation of the fifth indent of Article 3. The case demonstrates, once again, that in practice it is often unnecessary to confront the clash between the approaches adopted by Munby J (as he then was) in  Marinos v Marinos [2007] EWHC 2047 (Fam)  and Bennett J in Munro v Munro [2007] EWHC 3315 (Fam) as to the interpretation of the fifth indent of Article 3 of Brussels IIR.

Habitual Residence

Article 3 states:

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, insofar 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;

Habitual residence is not defined by Brussels IIR. Reference to the Borras Report (Official Journal of the European Communities 1998, C 221/27), the explanatory report approved by the Council, has consistently been made. Habitual residence is described in the Borras Report as:

'[32] … 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'.

Different judges have formulated this in different ways. In L-K v K [2006] EWHC 153 (Fam) Singer J held the parties had:

'[34] … established in this jurisdiction not as transients but for a settled purpose or intention'.

In Marinos Munby J rephrased the Borras Report's centre of interests test as '[83] … centre of gravity', which seems to be nothing more than an anglicisation of the original phrase.

In Z v Z [2009] EWHC 2626 (Fam), Ryder J agreed with Munby J's judgment in Marinos and his use of two CJEU authorities:

'[43] I note with agreement the citation by Munby J in Marinos at paras [23] and [24] of the decisions in Fernandez v Commission of the European Communities (Case C-452/93P) [1994] ECR 1-4295 as follows:

'As the Court of First Instance, referring to the settled case-law of the Court of Justice, pointed out, the place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. However, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account.'

And Swaddling v Adjudication Officer (Case C-90/97) [1999] 2 FLR 184 at para [29]:

'In that context, account should be taken in particular of the employed person's family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances.'

The question of time has been, unsurprisingly, controversial. In L-K v K Singer J held that:

'[43]… 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.'

Meanwhile, in Marinos Munby J held:

'[87] There must be an appreciable period of residence before it becomes habitual, though that period need not be very long. It can certainly be measured in weeks rather than in months and in an appropriate case it can probably be measured in nothing more than days. But here, of course, we are concerned with a period of less than 24 hours'.

'[89] In a case such as this – where someone, as in the case of the wife here, is undertaking a planned, purposeful and permanent relocation from one country to another – there is nothing in Community law to prevent the acquisition of a new habitual residence contemporaneously or virtually contemporaneously with the loss of one's previous habitual residence.'

Further, in Z v Z, Ryder J held:

'[40]… A centre of interests may be established quickly or slowly, depending on the circumstances. Habitual residence in one country may not be lost despite a lengthy period in another.'

It would appear that you cannot be habitually resident in more than one country at once, as per Munby J in Marinos:

'[41]… At any given time a person can have only one habitual residence for the purposes of the regulation'.

This was approved by Bennett J in Munro at para [47].

The culmination of the case law seeking to elucidate the meaning of habitual residence was outlined by James Turner QC counsel for the applicant wife and agreed by Lady Justice Macur at paragraph [10] of Tan v Choy:

'(i) a permanence or stability, not temporary or intermittent;

(ii) the centre of his/her interest;

(iii) exclusivity of such circumstances; that is to possess but one habitual residence.'

Marinos v Munro
Controversy has arisen over the fifth indent of Article 3(1)(a). Munby J in Marinos stated that the fifth indent should be interpreted as there being required:

'[46] two things: (i) habitual residence on a particular day and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period'.

Shortly after Marinos, Bennett J in Munro disagreed (albeit expressly obiter) with Munby's interpretation and considered that:

'[49] 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 Art 3(1)'.

He further argued that there was no distinction between residence and habitual residence for the purpose of the Regulation and no need to insert words into the Regulation, stating:

'[53] If then I am correct on this point there is no need to insert into the Regulation words as suggested in para [46] of the judgment in Marinos v Marinos.'

As such he concluded:

'[52] Thus, what, as I understand it, the fifth and sixth indents of Art 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 UK and Ireland, whether the applicant is domiciled there. But, second, since an applicant returning to the UK either retained his or her domicile of origin, ie the UK, notwithstanding that he or she lived in a foreign country having left the UK or upon return to the UK there and then abandoned his or her domicile of choice and reverted to his or her domicile of origin, ie the UK, then the Regulation is at pains to make it clear that what else is required to establish jurisdiction in the UK is habitual residence of the applicant. As Dr Borrás said at para 28 of the explanatory report: 'Point (a) uses habitual residence in order to determine international jurisdiction'.'

Following the two cases, it was open for future judges to apply Munby J's interpretation of the fifth indent or Bennett J's obiter opinion.

Which interpretation have the courts followed?
Holman J in Olafisoye v Olafisoye [2010] EWHC 3539 (Fam) chose not to engage in the debate, considering only whether the wife had been habitually resident for the full 12 months:

'[58] Without in any way deciding, or even expressing a view on, the point which, as I have explained, has divided Munby and Bennett JJ, I propose to assume that the indent requires the wife to have been habitually resident here throughout the year ending on, and still habitually resident on, 17 May 2005.'

Munby J's interpretation of the fifth indent of Article 3(1)(a) was followed in V v V [2011] EWHC 1190 (Fam) by Jackson J who not only endorsed Munby J's judgment, but also outlined his opposition to Bennett J's position. His laid out his reasoning clearly in paragraph [47]:

'(1) It reflects a plain reading of the article.

(2) Habitual residence is a term of art, while residence is not.  Residence, as Mr Scott says, is simply where a person lives.  As the Borrás report makes clear, the drafting of these particular indents was heavily contested.  I agree with Munby J (at paragraph 46) that "the regulation... quite clearly distinguishes between two different concepts.  If it had been intended to refer just to the one concept the regulation could, for example, very easily (and whether in English or in the equivalent French) have used [other] words" (and he then goes on to illustrate).  In contrast, the decision in Munro requires the court to add a word ("habitually") that does not appear. 

(3) I read the article as a whole as requiring a petition to show the qualitative feature of a genuine connection, as represented by habitual residence and, in minority cases under the fifth and sixth indents, a quantitative feature based upon length of residence.  I believe that this is what is meant by Dr Borrás when she speaks of "the basis of habitual residence combined with other elements" in these indents. 

(4) On the issue as a whole, I respectfully prefer the analysis of Munby J.  The reasoning of Bennett J at paragraphs 49-54 of his judgment is, I find, less easy to follow.

(5) As it happens, the decision in Munro did not turn on the interpretation of the sixth indent, but was determined by a finding that both spouses had been domiciled in this country and the jurisdiction existed under Article 3(1)(b).  Bennett J's observations were, as he acknowledged, obiter dicta

At first instance in Tan v Choy HHJ Horowitz considered that Munby J's interpretation was correct, however, his findings were that the husband had been habitually resident in England and Wales for 12 months and failing that he had been habitually resident when he made the application and resident for 12 months prior to the application.

In the Court of Appeal, Lord Aikens at paragraph [30] considered that there are three 'possible' interpretations of the fifth indent:

'First, it could mean that the person seeking to found jurisdiction has to be "habitually resident" in the territory concerned at the date the proceedings are started and he also has to have "resided" there for at least a year before the relevant proceedings are started.  

Secondly, it could mean that the person seeking to found jurisdiction has simply to have been "habitually resident" for one year prior to the start of the proceedings. 

Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is "habitually resident" at the time the proceedings are started and that this fact is proved by establishing that he/she has "resided" in that territory for at least a year immediately before the proceedings were started ("…application was made").

Lord Aikens' first possible construction mirrors the interpretation in Marinos, whilst his second reflects Munro. His third construction provides an unexpected addition to the debate, having not been considered in previous case law. He does not discuss the third construction any further in his judgment, but it would appear to go to the interpretation of habitual residence.

In the context of the third construction, it is unclear what Lord Aikens considers "resided" to mean. Indeed, he notes that 'there is no definition of "residence" or "resides" in either Article 2 or 3' [29]. It is submitted that, as Mr Choy was not in the jurisdiction permanently for the 365 days preceding his application, Lord Aikens cannot have considered "resided" to mean 'permanent' residence. This would accord with the case law discussed above.

As such, "resided" must mean to have "residence" in England and Wales whilst not requiring the individual to be physically present in the jurisdiction for the full period.

It is respectfully submitted that this uncertainty further muddies the waters somewhat. As previous case law has shown, an individual can be "resident" in more than one country and, (as Lord Aikens himself acknowledged at paragraph [29]), habitually resident in only one country. Should one year's "residence" demonstrate habitual residence then if, hypothetically, an individual was "resident", in the less strict sense, in both England and France for one year, then that fact could be used to demonstrate their habitual residence in either country.

However, Lord Aikens considered the doctrinal dispute 'irrelevant' for the Tan v Choy appeal (paragraph [30]) as 'if it is demonstrated that the husband was "habitually resident" in England and Wales during that period [January 2011 – January 2012], then any one of the three possible constructions… would be established' (paragraph [32]). He considered that the husband was habitually resident in the said period (paragraph [34]). 
As stated above, Munby J's interpretation has received positive judicial treatment by both Jackson J in V v V and HHJ Horowitz in Tan v Choy. If anything, following the Court of Appeal decision in Tan v Choy, the interpretation of the fifth indent is in greater need of clarification and requires a final determination by either the Court of Appeal or by reference to the CJEU. Where a party (either one's client or the client's spouse) is seeking to rely on the fifth indent of Article 3(1)(a) and he/she is unlikely to have been habitually resident for the year, it may be prudent to advise the client as to the risk of an appeal to the Court of Appeal or the CJEU.

Should a first instance court conclude that the relevant party has been habitually resident for 12 months, then as in Olafisoye and the Court of Appeal in Tan v Choy, the court may not consider the Marinos/Munro debate relevant. On the other hand, the court may also entertain the debate and find in favour of Munby J's interpretation and also justify its findings under Bennett J's test as indeed HHJ Horowitz did at first instance in Tan v Choy. Both approaches would lead to the same practical result.

Whilst no court has endorsed Munro, the practical effect of either justifying a decision under both tests or ignoring the Marinos/Munro distinction has resulted in the same outcome as if Munro had been applied. In the long-term, if Marinos is the correct interpretation, this should not continue.

Ultimately, in the situation where a court bases its decision on Marinos, a decision of the Court of Appeal or a reference to the CJEU seems necessary. To quote Lady Justice Macur at paragraph [18] of Tan v Choy:

'Mr Turner, in his efforts to persuade this court and the court below to refer a question to the CJEU, concentrates on the conflicting obiter dicta at first instance garnering academic debate and opinion, the inability to transpose the decisions of the Supreme Court and CJEU relating to habitual residence of children involved in cases of international wrongful removal or retention and the ambiguity of the definition of "resided" absent adverb within the Regulation. Such arguments may well be compelling in specific factual scenarios – but not that presented by this case.'

The debate continues.