English Court of Appeal confirms wide jurisdiction in divorce case

The English Court of Appeal in Sekhri v Ray ([2014] EWCA Civ 119) confirmed that a husband and wife were both legally domiciled in England, despite the fact that the couple had married in India and lived in Singapore since they married. The case highlights the long jurisdictional reach of the English courts in divorce cases and highlights that people with flexible international lifestyles can remain (perhaps unknowingly) domiciled in England despite having seemingly left the jurisdiction behind. The principles discussed in this case would apply in Hong Kong in similar circumstances.

Domicile is a common law concept that the Courts use in certain cases to determine which legal system applies to an individual where they have a connection with more than one jurisdiction. It has particular relevance in divorce cases, because – if one spouse is domiciled in England – the English Courts can take jurisdiction over any divorce. The same principle applies in Hong Kong by virtue of section 3 of the Matrimonial Causes Ordinance. 

A person is born with a "domicile of origin", which will be their father's domicile if born to married parents or alternatively the mother's domicile if his/her parents were not married. The domicile of origin can, however, be displaced by a sufficiently strong set of facts which shows that a person has made their permanent home elsewhere, a so-called "domicile of choice".

The Court stressed that, under the English common law test (which is also applied in Hong Kong), the domicile of origin had a more adhesive nature and was harder to lose than a domicile of choice.

The Court of Appeal confirmed the trial judge's finding that the wife's domicile of choice was England, despite the fact the wife was born and brought up in India and only moved to England aged 28. The following factors were considered to support her domicile of choice remaining in England, despite having married in India and moved to Singapore:

• The wife, prior to moving to England, had dreamt for many years of living and working there.  In addition, following an unsuccessful arranged marriage, the wife had a great desire to leave India and avoid the social pressure of being a single separated women in Indian society.
• The wife gave evidence that, within a very short period of time, she regarded London as her permanent home and had no desire to return to India. This was strengthened by her purchase of a house in Ealing in 2005 which she continued to own.
• But for the wife later falling in love with the husband and his career move to Singapore, she had every appearance, every intention and every expectation of living lifelong in England.
• The move to Singapore was for the wife, no more than a pause, or as she described it in one email, "a breather". In other words, she always intended to return to England, and as such never abandoned her English domicile of choice.

There were several other minor factors which counted against such a finding, including their marriage in India and the fact that the wife's parents had purchased a small flat in Delhi in her name in 2005, but they were outweighed by the above factors.

The case highlights how the question of domicile is highly dependent on the individual facts of a case. People with connections to various countries should not take their legal domicile for granted. 

If you wish to discuss, please contact Gareth Thomas or Richard Norridge of our Private Wealth and Trusts team.