How do you demonstrate habitual residence?
October 5, 2011 7 comments
This blog receives many enquiries from people overseas who wish to know if they are able to present a divorce petition in England. The answer, quite simply, rests on whether or not there is jurisdiction to do so.
In other words: can you demonstrate a sufficiently strong connection to this country? It isn’t always easy and the answer isn’t always obvious.
Sometimes there is no connection to England at all. Sometimes there is. Sometimes there are connections to other countries, which appear to be as strong or stronger. But there is still the potential to establish jurisdiction.
Because we belong to the European Union, jurisdictional grounds are governed by European law. The relevant law is Art 3(1) of Brussels II revised, which is reproduced below:
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;
(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.
If you take a look at the new petition form for divorce or dissolution of a civil partnership, you will note that Part 3 (right) is named Jurisdiction – and to a non-lawyer, I’m afraid that much of the content does seem like gobbledygook.
Here you are being asked to demonstrate why the court has jurisdiction to deal with your divorce.
Your answers in Part 3 are often of critical importance, particularly from a financial perspective. I have discussed this at length in a number of previous international family law posts; as have other members of our International Family Law department.
You will note that the excerpt from Art 3(1) of Brussels II revised includes a reference to domicile, which is a peculiarly English/Irish concept. I have written about domicile before, and will be posting an update next. So don’t worry about what that means until next time!
In this post, I am considering the meaning of habitual residence, within the context of a divorce or dissolution of a civil partnership and also residence within the same context.
V v V and habitual residence
So how do you demonstrate habitual residence, particularly if you live a cosmopolitan life style and flit between several countries?
A recent case called V v V (2011) EWHC 1190 provides a great example. It involved a couple with connections to a number of different countries. The wife wished to proceed with a divorce in England. She claimed jurisdiction because, she said, she had been habitually resident in England, residing here for at least a year before the petition was issued. Could she proceed?
This was a hard-fought case before the parties even got to court to argue about jurisdiction. They had been many times before. As the judge said “These parties have not hesitated to litigate about every conceivable issue”. By the time the jurisdiction issue was heard (the first consideration of the court, you might think), the overall costs amounted to £925,000! Mr V and Mrs V had already litigated about interim funding, the children, contents, occupation and non-molestation orders, freezing orders and interim financial orders. The judge remarked that all these costs had been incurred “without a basis for jurisdiction being established or a page being filed in relation to the ultimate financial orders that will be required”.
Quite a fiery case, wasn’t it?
The husband was a member of a Greek shipping family. He spent considerable time in Greece, Switzerland, the USA and England. The wife had been brought up in Brazil, but had also spent considerable time in Switzerland, the USA, England and France. The couple lived in England for three years, then left to “reset the clock” of the husband’s non domiciled tax status.
After the birth of their two children, they travelled more generally in Europe and then returned to occupy their London home. They lived there for about a year, but in 2009 the husband, anxious to avoid UK tax liability in relation to a substantial business transaction, moved to Switzerland. The wife and children continued to be based in London. In December 2009, the wife began to spend about two-thirds of her time in Switzerland, and both children were based there. Arrangements were made to sell the London home, but the wife was actively seeking rental property instead. In March 2010 she applied for a UK residence permit, which was granted a few days later, and in that month the children returned to London. Mrs V issued her divorce petition in April 2010.
The husband argued that the English court did not have jurisdiction because his wife was not habitually resident between December 2009 and March 2010.
This period of three or four months between December 2009 and March 2010 was clearly critical for both parties. The facts were minutely dissected. So was the law in which the distinction between habitual residence and mere residence was made clear.
Habitual residence is a concept under European law. Its meaning, as per the accepted interpretation of Dr Alegria Borras, is as follows: “A person’s habitual residence is the place where the person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account”.
When considering a party’s “centre of interests”, the party’s intention also forms part of the court’s overall assessment – despite the argument of Tim Scott QC, who represented the husband in V v V, that “this introduces an undesirable element of uncertainty”. (Incidentally, a couple of weekends ago on that course in Bloomsbury, I discovered for myself that Tim Scott is a man of formidable brilliance. You can imagine my feelings about having to “represent” him in a role play against two lawyers on the other side, one also pretending to be the client…..!)
Z v Z and the test of intention
This test of intention, originally set out in the case of Z v Z (2009) EWHC 2626, enables a court to assess the mental element in concepts such as permanent, habitual, residence and home.
In Z v Z, Mr Justice Ryder held that the emphasis for establishing a place of habitual residence was to focus upon the centre of a family’s interests. He found that a “centre of interest” may be established quickly or slowly depending on the circumstances, and that it might not be lost in one country despite a lengthy period spent in another.
In that case, a French husband divided his time between the family home in Paris and his workplace in London. The family then relocated to London, where the children attended school. They kept a house in Paris, but within a month of relocating to London, the couple entered a trial separation. This led to divorce. The wife immediately petitioned in England and, a few weeks later, the husband issued divorce proceedings in France. The French court stayed (suspended) its process. Although the husband then found that his employers required him to return to France, the wife successfully argued that at the time she presented her petition, both husband and wife were habitually resident in England.
Mr Justice Ryder found that at the time of the family’s move to England, the couple intended to change their centre of interests and, even though the husband’s intention had since changed, he had not communicated this to his wife.
Back to V v V where, applying the objective test in Z v Z to the facts, the judge in V v V found that the wife had demonstrated the requisite intention to habitually base herself in England. It was indeed the centre of her interests. The judge conceded that in some cases, moving to another country could well amount to a change of residence.
The court will take into account the links the parties have maintained, as a family and individually, with the country of origin. It will consider where the children were educated, whether or not the children have become fully involved in their new community, and if they speak the language. The court will also consider whether the parties pay local taxes and have transferred assets to the new country.
But in V v V, even though the wife had moved and spent most of her time in Switzerland, during the period in question, she had not stopped residing in England.
The judge then turned to the distinction between habitual residence and residence. This was because Art 3 (1) requires the Petitioner to have been habitually resident at the date of presentation of the petition and to have been resident (not necessarily habitually resident) for one year prior to the issue of the petition.
There is a distinction between the two concepts, and the definition changes in different areas of the law. In children law for example, a distinction is made between habitual residence and mere temporary presence.
In V v V, Tim Scott argued that it is not possible to be resident in more than one country simultaneously – and on the face of it, he has a point. However the judge disagreed, noting: “I have no difficulty with the concept of a person being resident in more than one place at a time…a family with more than one main home, the person who spends extended periods away at an established place of work”.
He added: “Since simple residence is not a basis for jurisdiction, simultaneous residence in more than one member state cannot lead to jurisdictional conflict”.
Marinos v Marinos and the quality of residence
There is thus a clear distinction to be drawn by reference to the quality of residence, and it follows a decision in the case of Marinos v Marinos (2007) EWHC 2047. This was another case involving a Greek husband and an English wife. The wife was an air stewardess who maintained a residence with her parents in England. She became habitually resident when she undertook a planned relocation to England, issued her divorce petition the following day and thus could present her petition.
In both V v V and Marinos v Marinos, the court found that it is possible to be habitually resident in one country and resident in another. It is also possible to be resident in more than one country. Wealthy people will often maintain different homes around the globe and be resident in them. But it is not possible to be habitually resident in more than one country.
Confused? I’m trying my best to keep it simple!
If you are thinking of proceeding in England, then you must give jurisdiction some close scrutiny and thought. Do take legal advice about how these complicated rules might apply to you.
But here’s a final word of warning… Please don’t follow the example set by Mr V and Mrs V, who spent almost £1 millon on other issues before the main case even began. If you do, you may litigate away in costs the financial advantage you were trying to secure in the first place.
October 5, 2011
Categories: international divorce