The case of Kelly v Pyres and why do people want to get divorced in English courts?
By:2 commentsJune 18, 2018
I’ve commented here previously about one of the features of the modern family: it and its members can cross and re-cross international boundaries with a frequency that would have been considered a rarity just a generation or two ago. This can obviously lead to complications in family disputes, particularly relating to the issue of jurisdiction, i.e. which country’s courts should deal with the dispute.
And these things can matter. The classic case of a jurisdiction dispute involves a wife arguing that her divorce should take place in England, as the English courts are believed to be more generous to wives when it comes to finances than the courts in many other countries. We are not told of the motives of the wife in the recent Court of Appeal case Kelly v Pyres for seeking to have the divorce case take place here, but the issue clearly mattered greatly to the parties – so much so that they spent four days arguing over it at the original trial, before the husband took the case to the Court of Appeal.
I actually wrote a post here about that original trial, albeit the post being in the somewhat unusual format of an imaginary interview between the trial judge Mr Justice Cobb and Jeremy Paxman of BBC’s Newsnight. To save readers the pain of reading that post I will briefly set out the essential facts of the case again here.
The husband was born in India. He came to England in 1957 and lived here until 1995. The wife was born in England of Irish parents, but she grew up in Ireland. In 1995 she moved to Manchester to study for her Master’s degree, staying in England for 18 months. She then went to work for the European Commission in Brussels, where she met the husband.
At the end of 2001, the wife took up a time-limited contract with a company in London. She spent another eleven months in England, living with her husband in a property he owned in Fulham. She then took up a post in Albania in November 2002. She has not lived in England since.
The parties were married in Italy in 2005, and they have two children. In 2006 the husband moved to Bosnia, and in 2009 the wife also moved to Bosnia, where she lived with the husband.
The marriage broke down in 2015 and the wife issued divorce proceedings in London in July that year. The husband claimed that the English court did not have jurisdiction to hear the case.
The wife claimed that the English court had jurisdiction on the basis that she was domiciled in England and Wales (as I explained in my earlier post, where a person is domiciled is essentially the country that that person treats as their permanent home). Even though she had not lived here since 2002, she said that England was her ‘domicile of choice’, in that she had retained links with England, and had never considered any other country to be her home.
Mr Justice Cobb agreed that she was domiciled in England and Wales, which meant that she was entitled to proceed with her divorce suit here. The husband appealed against the decision.
Giving the leading judgment of the Court of Appeal Lady Justice King held that Mr Justice Cobb had erred in finding that the wife had acquired a domicile of choice. To do so she must have an intention to reside permanently or indefinitely in this country and must have acquired that intention whilst she was resident here. There was no evidence that the wife had acquired that intention in either of the two periods during which she was in this country.
Accordingly, the appeal was allowed. The wife was not domiciled in England and Wales, and could not, after all, proceed with her divorce suit here.