Habitual Residence and Domicile in Family Cases

Hello. Welcome, everybody. I'm very pleased to welcome you to today's bites. I session through data law, dishonesty bites I session when taking through habitual residence and domicile in family law cases and how these are relevant in family law matters. So the aim of displaced I session over the course of the next 20 minutes is to taking food the position with family cases where I'm going to be looking at particularly international perspectives on where there are issues over disability jurisdiction. So this will relate to matters related to financial remedy proceedings, divorce, dissolution, off civil partnerships and judicial separation and separation. A swell has really finance applications falling run from an overseas divorce, for example, on I'm also going to be taking you through some of the aspects surrounding issues over the courts. Having jurisdiction in Children matters. Also, when there are matters relating to jurisdiction, offer habitual residence on don't me so so lesson start firstly with D position with what we mean by Thomas Island habitual residents. Everybody must have a domicile which is effectively defined as whereby it's where person regards their permanent place of residence, but also with a settled intention to his live there permanently on your domicile, actually attach easier to a particular legal system. Okay, on da domiciled, therefore, is very different nationality on. It's very different to habitual residence. As we'll see now, we all love a domicile of origin and that, essentially, is going to be a domicile at domicile of the child is going to be that with apparent at the time that the child is born. So if depends, are married and living together at the time of the child's birth, and the child would take domicile of the father and the parents are unmarried and living together at the point at which a child is born. Done. It'll be that the mother as a child and go through their childhood. They have what's called a domicile of dependency. And this will change if the child's parent change change their domicile and the domicile of dependency will be that with whom the child remains dependent on. So it depends, therefore, remain married. On. Living together in this child will have the domicile dependency of that. The father and for pence remain unmarried on living together that off the mother. But if the payment separate that will be that of Deep Parent, with whom the child lives with. Once the person concerned turned 16 then the have what's called a domicile of choice. And that's where they are permitted to have their own domicile based, like Selwyn off where they regard themselves as permanently residing, with the coupled intention to reside there permanently so they foot is a requirement to consider both aspects there on that. This is where it's important effort to look at somebody developing case Lawrence farces is concerned, particularly when we look at issue over jurisdiction because various countries can't have jurisdiction to do with matters on the basis off domicile. In no circumstances of a case of R and R, for example, divorce Jurisdiction Thomas Artists a 2006 case, We're Here the wife applied for in order to stay a divorce petition pending determination off a country of Thomas on other parties here have married in England on the move to France on that live together for some 10 years total enter tomorrow you some 20 years Onda hot husband and lodged divorce petition in England. He claimed that this was a place of domicile, but the wife actually claimed that she was domiciled in England and Wales, but that she was habitually resident in France. In the circumstances Andi, she'll ever tried to rely upon the fact that differential thought his good of jurisdiction based upon habitual residence. Now, what was the wife domicile in a second chances? Well, the fact that the wife had indicated English domiciled in their first acknowledgment would not prevent her later claiming the French domicile. But here the wife had not proved, actually had a settled intention to give up her English domicile of origin and to adopt a French domiciled to change your residence alone was not sufficient proof on a wife had not made any effort reach integrate herself into the community and therefore the wife on the facts kept her English domicile of origin. They can see a lot of this, therefore, is very much based upon what the person regards as they put in a place of residence, coupled with intention to reside there permanently so he can see this two elements at to that that brings me onto her picture residents. And this is really more of a question of fact on this is defined as effectively involving an intention to reside in that particular place, but coupled with a particular physical presence in doing for some time on involving there for more than just ordinary residents. It can be temporary, and in fact, it's possible to be habitually resident in more than one country at any one time. But it's not possible to be domiciled in more than one country at any one time. But this is what a case of Chemie against Chemie is very useful, which really emphasizes the point off whether a person can be habitually resident into places simultaneously. The couple here we're Nigerian citizens, and they had a second home in London. And that wife returned to London for twice for periods of about four weeks during the school holidays and her husband, filed for divorce in Nigeria. Was the wife who lived in London, lodged a petition for divorce in England, Not a court did say that it is possible to be habitually resident more than one country at any one time. He had a wife had actually has been a substantial amount of time in England on the panel residence was depend upon the school year on when considering the need for presence. Device present in the UK was sufficient. She was here more than just talking level. She had actually become integrated into this country, has had two Children who were attending schools here and therefore they had integrated into the social economic part of the country. On here. The court did say that her there was evidence to suggest that the wife therefore had a quiet a temperature as it and seeing Therefore, it was possible for a to large a divorce petition here on that basis. There's also no Marinos and Marino's case of 2007 on that. This was a really looking at the issue of whether or not the wife was able to bring grands under Brussels to revised, as I was to then enable her to petition for divorce in England. Now this was a case where the parties met and married in England at they had Children on some years legs, they're both moved to Greece. Uh and uh, the job that the wife did was effectively cabin crew, where she spent a lot of the time clearly traveling from one country to another as a result of their job. But she spent a favorite of time in England on dad. A couple separated it not a husband claimed at English courts. Wonder wife. Larger divorce here did not have jurisdiction, he claimed, and he sought to stay. He lodged a divorce in Greece, claiming that the Greek or thought his heart jurisdiction. But the wife issued first in time, and therefore she was arguing that the English petition should take priority if the English Wash courts have jurisdiction. So this is where the court looked at issue of Thomas Armature, residents on the court decided, but Deep wife would be able to continue with her application here. The court said it is possible to be habitually resident in more than one country at any one time if, as in this case, two parties concerned are divided into time between various countries and in so far as the length of time that's required, that one needs to be in that country to show that they habitually resident it. This is very much fact specific. The court said that it's possible to lose habitual residence in a single day, but to acquire it, it needs to be relief after appreciable period of time and here on the facts. The court did say that to a sufficient evidence here that the wife had picked a perpetual residents here, given the circumstances. So when one is dealing with a divorce, you'll be aware that firstly, we have Section three subsection one of the much wanted cause. That mind is under three word by it stipulates that divorce cannot be commenced within the first year of marriage, but also in so far as the position with domicile in habitual residence is concerned. This is where sexual five subsection two of the domicile in much one observes that 19th century comes into play, which was amended. Body grouping commit his Regulations 2001 effectively Brussels to revised so that the effect is that the English large courts will have jurisdiction based upon no domicile and if not habitual residence, and therefore, when it comes to lodging petitions for divorce, dissolution of civil partnerships, separation, judicial separation and duality. And those applications could be dealt with in England wells on the basis but heard English water authorities have jurisdiction based upon habitual residence. And with that in mind, us where sometimes you love cases, therefore, whereby there will be arguments but between parties is to with a which which country was the 1st 1 in time in order to then ASEAN responsibility with that in mind. And this is what a case of Jefferson and all Connor is very useful. Where he had a couple lived amount in Spain, the party separated and the wife came to England, which large divorce proceedings. The party's later agreed that she wouldn't proceed a divorce in England and instead the proceedings would be dealt with in Spain on the proceedings were therefore lodged in Spain, but which one day party on the court Dedrick divided rely upon your source to in this regard. She said that here on the facts, she had a lot of proceedings in England on the application could be dealt with here on any agreement between them, could not asked that provision. If needs be, the only way to ensure jurisdiction of a member state was a logical, seemingly naturist action on ensure that you discontinued proceedings in another jurisdiction were here. The wife didn't wish to disk unseeded to proceedings in England. Beautiful. Those could effectively continue doesn't brings me on to at this recent case of Forman Thumb. Now this really looks at the issue about the legal effect of delaying to serve and progressively rules that have been lodged with the court with a view to effectively, some people would say, trying to strategically use the country for purposes of jurisdiction. So this was a case where, by the wife had lodged a divorce in England. The husband lived in Germany on the petition was issued, but the wife did not use it for some time on data. Question then was whether or not if you lodge your petition in England, for example, but you don't serve for some months. What? The English Wash court still have jurisdiction. So here the wife. Even though she lodged a divorce in England, she didn't take steps to serve until about three months later on. In fact, her husband wasn't serve until about four months after the issue of repetition. The husband argued that this was bad practice and therefore the English court should not have jurisdiction. Instead, he should be allowed to pursue his divorce in Germany, and therefore the German court should have jurisdiction Now. The wife, of course, argued that it was famous for the application of Brussels to incorporating the so called first past the post room for determining jurisdiction so that the court, which was first seized, should be the one who has jurisdiction. But the husband said that Article 16 of Process to Revised has the effect that court shall be deemed to be seized, at the point of which the document institute proceedings is larger. The court provided the applicant has not success subsequently failed to take the steps that are required to take to have service affected on the response, or he was arguing that wife had not taken sufficient steps to effect service upon the respondent to live on that basis, English courts were not seized with the application. On that, the husband effectively was argued that this was a strategically lodged petitions so that he effectively wanted aside a wife, effectively wanted English courts to have jurisdiction here on that basis and therefore her application effectively. A divorce based upon this should be struck out. But a court did say that on the facts. This wasn't case with a wife fail to distance case with wife had actually sent the papers to fund process section for service. Uh, the wife had given her husband address in Germany by ever have a ship given his office address on this little papers being delayed. So this wasn't a case where the wife had strategically largely force and therefore fell to do anything. Not that I actually tone appear on. In fact, 1/4 appeal have sided with the high court decision on this onder. The court has taken the view that the proceedings had in fact been lodged in the circumstances. And in fact, there is nothing in the law which specifies off what period of time the person is required. His served There isn't anything written which requires one to serve within, say, seven days of 14 days or otherwise. There isn't even a a thing. Andrews, which says that one has to serve as soon as possible. Sina's packing pointy second stances on. Therefore, the court did say that applying the order and objective here, this wasn't a case where the wife had actually strategically tried to avoid service. This is an attempt which he had tragedy so but unfortunately had provided the wrong details on the court. Therefore rejected her husband's case that domestic proficient tribute event has required a petition to serve a petition immediately or within any specific period of times. On that basis, this was not accepted. Sometimes you have cases whereby parties will actually seek a divorce and they will actually have been divorced overseas On the question then is what if they didn't come to England or Wales and then they seek to bring gate on application for financial relief in England worlds? Will they be allowed to bring a second claim if to have already had financially proceedings down with overseas, where this was the basis upon the case of similar hands in Mina at this 2017 case? And this was on appeal by the husband in relation to the wife's application and the order that was made under the match money on family proceedings? That 1990 four Part three, which effectively is for financial relief in England, Wales. After overseas divorce, I would look quite ordered a husband to pay a lump sum to the wife off just over one million indoor circumstances. That a question here was can to court, make an order, hundreds say, for active there was already being an order overseas on that court did say that it's unusual fully to be made on the part ful. We're following orders in place under issues. Therefore, were that what does actually financial benefit mean for the purposes of bringing a financial benefit? On the section 16 of this, 1994 on the court did say that a financial benefit is one which is going to be interpreted very widely on here, even though he ordered I'd be made overseas wasn't in the same for matters what you would have in terms of financial orders in England. The court still took the view that here on the facts and applying this particular circumstances, they had been sufficient financial determination off the proceedings in relation of finances overseas overseas and they for being a profit for the wife to be up to rely upon effectively being able to have another chance entre proceeding a greater or wider order for finances in England's again day on the facts, the court disallowed this. Nothing brings me on to somebody Children cases when it comes to issues over habitual residents and this case of Reedys very helpful, reedy a child, something or maybe this 2015 case, and this highlights the fact that the principles for determining habitual residence for Children in the circumstances are such that one has to look at at a place which reflects some degree of integration. But a child in a social and family environment and one day for has to look at effectively The fact that her habitual residence is a question of fact and not legal concepts that just don t sell on that one has to therefore look a degree off integration by the child in a soldier on family environment, which looks like really the reasons for the family stay in the country in question. At the social and family environment of an infant, a young child has shared with the parents and therefore one would need to look at the position with the parents, and it's possible that a child might have no country of habitual residence at any particular point, and this was therefore looked at. Furthermore, in the case of Ri n Children on, this is a very important Supreme Court decision in 2016 which really looks at a situation whereby even if the English and Welsh courts have jurisdiction to deal with a child's case here for the purposes off Article 15 a process to revise on the base of habitual residence. That doesn't mean that the child's case should necessarily be dealt with by English and wash authorities. What we end provides is that one has to look at the long term and short term benefits off the child's case being done within England. Wells foresees being dealt with elsewhere. So here the Supreme Court's had done. One needs to consider the short term and long term consequence that the transfer on a chance case, the hungry in this place or whether or not the child's case should have been dealt with him. And that's really based upon the application of Article 15 which is where the English and what courts do have jurisdiction. One has to look at which member state is best placed to deal with the chance case, and that's based upon what's in the child's best interests. And if we have to look at Wayne Group D M. Short time, a long term consequence of the chance case being handled in England and Wales versus being handled in the other member state Onda. Similarly, in the case of Rielle a Child in 2016 case what a court therefore decided here was that is very important to therefore give consideration to Article 15 off B. I. R. In these circumstances, So time here on the fact that the question was this. Two words in English gua jurisdiction. To make these orders, one would therefore need to see whether or not the child is habitually resident here. And if the child is habitually resident, then one has to look to see whether it's more profit for the case to be handled in England, Wales or or doubt with on if de English wash courts do not have jurisdiction. This is where an Article 17 to 20 going to play, whereby English and Welsh courts can still of jurisdiction on the basis of a child protection, um, agency. So sometimes it may be appropriate for an urge in order to be made in circumstances where, even though the court does not have jurisdiction, you need to make an agile order on behalf off the family indoor circumstances. Okay, six again, a very useful case, one to bear in mind when you're dealing with matters over jurisdiction our case, they concede issues of domicile in habitual residence is somewhat connected, but also very different. Even though domicile is a legal concept, richer residences very much a concept which is based very much upon the circumstances of the case. And he can see that it's possible to be habitually resident in more than one country. But survives domicile is concerned. That's not possible domiciled on habitual residence, obviously the basis upon which one kind of seem jurisdiction. And he can see, particularly under finance cases, that we looked out that the situation is to which country the proceedings that dealt with can have quite a significant impact when it comes to determining the issue off financial division. Can I thank you very much indeed for listing the hope that's been used for you and I speak to you next time. Thank you. Bye. For now.