Kelly v Pyres

This is an appeal against an order made by Mr Justice Cobb on 8 March 2017 whereby the court found that at the date of her divorce petition of 28 July 2015, the applicant wife, Una Mary Kelly (“the wife”) was domiciled in England and Wales.

In the light of his finding, the judge made an order that the applicant was entitled to proceed with her divorce suit in England under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and Article 7 of the EU Regulation 2201 of 2003.

The issue on appeal is whether the judge was wrong in having found the wife to have acquired a domicile of choice in England, her domicile of origin being in Ireland.

The trial which lasted four days, focused not only on the wife’s domicile but also on that of the husband and upon issues of forum conveniens. The judge found that the husband had retained his domicile of origin of India and that Bosnia (where he had issued divorce proceedings) was not the more convenient jurisdiction for determining the divorce. These findings are not challenged. The only issue remaining is therefore that of the domicile of the wife. A finding that the wife is domiciled in England is critical to her ability to pursue divorce proceedings, and therefore financial remedy proceedings, in this country given that it is common ground that she is not habitually resident in England.

The applicable law is well established and was agreed. The judge’s findings of fact are, to all intents and purposes, accepted by both Mr Scott QC on behalf of John Norman Pyres (the husband) and Mr Hale QC who represents the wife. The basis of the appeal is therefore that the judge erred in his application of the law to the facts.

Any dispute in relation to domicile and specifically the acquisition or loss of a domicile of choice, is inherently dependent upon findings of fact by the judge of first instance and the inferences drawn from those findings. Mr Hale has rightly reminded the court of the danger of an appellate court interfering or substituting its own view in cases of this nature. In particular he refers to the paradigm case of G v G [1985] 2 All ER 225 at 228; [1985] 1 WLR 647 at 651 and Piglowska v Piglowski [1999] 1 FLR 1360 together with in Re N (Residents: hopeless appeals) [1995] 2 FLR 230 where Ward LJ said:

It is with this in mind, together with the fact that the judge is a highly experienced specialist judge who heard evidence over three days, that this court has approached the appeal with considerable circumspection. In particular I have in mind the judge’s express view that:

The husband was born in India to Indian parents and moved to England in 1957, aged 13. It was common ground that the husband’s domicile of origin was India. The husband completed his education in England and married an English woman. In the 1970s he bought two properties in England, one being a six-bedroom property in Fulham held in his sole name, which property featured significantly in the evidence. The husband also bought, and retains, a farmhouse in Italy. The husband worked in the civil service in England between 1972 and 1995 when he was seconded to the European Parliament in Luxembourg. He moved to the European Commission in Brussels in 1997. The couple met in Brussels in the late 1990s and married at the Italian farmhouse in August 2005.

There are two children of the marriage, one born in 2006 in London and a second child in Italy in 2008. The marriage broke down in 2015.

On 28 July 2015 the wife filed a divorce petition in England asserting jurisdiction of the English courts on the basis of

her habitual residence (although this was not pursued) and

her English domicile at the date of the petition.

It is necessary therefore to consider in a little detail the background of the wife.

The wife was born in England in 1972 of Irish parents. Her father was a surgeon working in England at the time. The family returned to live in Ireland when the wife was a baby and she remained there up to and including her university education, during which she spent an Erasmus year in Italy. As already mentioned, it was common ground that the wife’s domicile of origin was, and is, Ireland.

In October 1995, aged 23, the wife moved to Manchester to study for her Master’s degree. In 1995 she obtained a British passport to which she was, in any event, entitled.

The wife lived in England for the duration of her Master’s programme, a period of some 18 months. She left England in March 1997 prior to her formal graduation as she had the opportunity to move to Brussels to take up an internship at the European Commission. When the internship came to an end the wife stayed on as a permanent employee at the Commission.

The wife accepts that this period of 18 months has been the longest period of time in which she has lived in England.

In her statement in support of her application, the wife said, in relation to her intention during the time she lived as a postgraduate student in Manchester:

The wife worked in Brussels until October 2001 during which time she met and formed a relationship with the husband. At the end of 2001 the wife moved to England to take up work for a company based in south west London on, the judge found, a time limited contract.

The next 11 months marked the wife’s second and only other period of residence in England. The wife and her husband cohabited in the Fulham property which was in multiple occupation. They did not have exclusive use of the house, but retained a bedroom and bathroom for themselves whilst sharing the use of the kitchen.

The wife took up the post in England in February 2002, although by June, four months later, she had applied for a post in Albania with the EU delegation. By August 2002 she had been offered and accepted the job and left London in November to take up her new position.

Prior to leaving England, the wife and the husband went to Ireland to collect her personal belongings from her parents’ home which were thereafter left in storage at the Fulham property.

The wife has not lived in this country in the ensuing 16 years, but has pursued, and pursues, a demanding and successful career within Europe.

The husband initially remained in the UK following the wife’s departure, but followed her to Albania in 2005 and as noted, the parties married at the Italian farmhouse in August 2005.

A matter of days before the wedding, at the husband’s instigation the parties signed a prenuptial agreement. This curious document describes the parties as “British subjects” and “farmers” and declares that the husband and wife are “habitually resident and domiciled in Italy”.

The wife returned briefly to London in the summer of 2006 to have her first child, although she left shortly after the birth to spend her maternity leave in Italy before returning again to Albania.

In October 2006 the husband moved to Sarajevo to take up a new position with the European Commission where he remained until his retirement in 2009. Throughout this three year period, the wife remained in Albania and the parties had a long distance marriage between Bosnia and Albania. Their second child was born in Italy in 2008.

In 2009 the couple were reunited when the wife was posted to the EU delegation in Sarajevo. In the same year, in an attempt to salvage their marriage, the parties attended marriage counselling in London.

Unsurprisingly given the nature of the suit, the judge made a number of specific findings of fact in relation to each of the parties. It is important also to note the judge’s observations about the parties themselves. So far as the wife is concerned the judge found her to be [62] “a meticulous person.” The judge found her recollection and account of past events to be the more reliable of the two parties, although he had treated her “self-proclaimed statements of intent” with a degree of caution (just as he treated those of the husband). The judge reminded himself that the wife, like the husband, had signed up to having a purported but wholly erroneous, domicile “in Italy” at the time of their marriage in 2005.

So far as the husband is concerned the judge found him to have been “less than forthcoming” and reticent about disclosure in the run up to the final hearing “only relinquishing documents under specific challenge and court order”. The judge further found that the husband had deliberately removed, or caused to be removed, many of the wife’s files from the family computer. The judge found he did this “in a quest to frustrate the pursuit of the petitioner’s claims”.

It was against these background findings in relation to the parties’ credibility that the judge made the findings of fact in relation to the wife’s case between paragraphs 37 to 49. The totality of the judgment can be found at U v J [2017] EWHC 449 (Fam) and I therefore set out the judge’s findings in summary form only:

Throughout her adult life the wife has travelled extensively for work but “there appears to have been, throughout, an anchor laid in London.” From as early as 1998 or thereabouts she used a London address for all formal and business correspondence while she was working abroad. The judge accepted that from 2000 to date the wife used the address of the Fulham property for most purposes.

The wife kept the personal possessions which she had retrieved from Ireland at the Fulham property. Contrary to the wife’s case, the judge was not satisfied that there was any agreed firm, long term plan about the use of the property as a home, although it was one of a number of options.

The floor plan of the Fulham property did not support the wife’s case that when the Fulham property was renovated, the basement was designed to be a self-contained flat with a separate external entrance. The judge held that to do so would require extensive further work, although he accepted that the wife was concerned about the basement ceiling heights which was “indicative of an interest in living there herself”.

The wife paid income tax in England from 1997 to 2000 but, given the limited period concerned, the judge said this factor mattered little to his determination.

The wife paid national insurance contributions from 2002 reflecting “as she maintains and I accept - that it was to England that she saw herself returning to retire”. The wife’s pension for the EU delegation is to be paid according to the weighting referable to a base in England, not Ireland.

The wife returned to London for antenatal and postnatal checks for their first child, and postnatal treatment for their second. The first child was born here. Both children received their vaccinations in London and both parties are registered with general practitioners in London. The judge held that the wife’s “instinct and habit was to return to London for any significant medical treatment”.

In relation to the wife’s enduring connections with Ireland the judge noted that the wife has Irish heritage but did not regard it as having the same importance to her at the time of trial as it once had. The judge noted that her relationships with her own family were strained and they did not attend her wedding. The wife has no state pension or equivalent rights in Ireland and only a dormant bank account. The judge noted that the wife “perceives Ireland as not offering a multicultural life” and she described Ireland as “too monocultural, too small and too remote”.

The wife had chosen not to spend time in England when she could, preferring to be in Europe or further afield. She has never taken any of her holidays in England and the judge accepted that when she was living in England in 2001, she was applying for jobs abroad, not in the UK.

The judge summarised the wife’s case at [49] as follows:

Putting together his various findings the judge said at [60]

The judge reached his conclusion in the following way:

The law on domicile although not always easy to apply, is well established. The judge, in common with Arden LJ in Barlow Clowes v Henwood [2008] EWCA Civ 577, largely adopted the summary of the law found in Dicey and Morris 15^th edition. As it is common ground that the judge’s summary set out at [9] in 12 subparagraphs is accurate, for the purposes of this appeal I propose to refer only to those aspects of the law which touch on the issues with which this court is concerned.

The propositions of law of relevance to the wife’s application are:

The domicile of origin remains of great importance and is said to be “more tenacious” than other forms of domicile. As Dicey put it at [6-031] “it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice”.

There is a presumption that a person continues to be domiciled in the country in which he is domiciled. The burden of proof is on the wife to demonstrate that she has lost her domicile of origin, the standard of proof being the ordinary civil standard. Cogent and clear evidence is needed to show that the balance of probabilities has been tipped regardless of whether the issue is the acquisition, or loss, of a domicile of choice.

The statements of people claiming or disputing a change of domicile must be treated with caution unless corroborated by action consistent with the declaration. The court will view evidence of an interested party with suspicion.

A person can acquire a domicile of choice by a combination of residence and the intention of the person of permanent or indefinite residence but not otherwise.

Residence for a short period of time, even a few days, may be sufficient to establish a domicile of choice. The length of residence is not important in itself. (It is accepted by Mr Scott that, all other things being equal, either of the wife’s two short periods of residence in England could be capable of establishing a domicile of choice.)

Whilst the residence does not have to be long it has to be with the intention of permanent or indefinite residence.

Residence without intention or intention without residence will not do to establish a domicile of choice.

The difficulty which has arisen in this case is in relation to the juxtaposition as between intention and residence. It is in relation to this aspect that Mr Scott submits that the judge fell into error. The judge set out the law in relation to this as follows:

Mr Scott invited the court to consider in more detail two relatively recent cases namely Agulian v Gyganik [2006] EWCA Civ 129 (Agulian) and Barlow Clowes [2008] EWCA Civ 577.

Agulian was a case where the issue was whether a Greek-Cypriot who had lived in England for over thirty years had acquired an English domicile of choice. The Court of Appeal held that had the judge taken into account all connecting factors with Cyprus and England over the whole of the deceased’s life, he could not have found the evidence sufficiently cogent and convincing to displace the domicile of origin.

Mr Scott drew the court’s particular attention to the following parts of Mummery LJ’s judgment:

In Agulian Mummery LJ was concerned to ensure that the limitations of the role of the Court of Appeal are respected. He said however at [10]:

In his supporting judgment in Agulian, Longmore LJ summarised precisely what has to be done by an applicant to satisfy the court that a person has abandoned their domicile of origin and acquired a domicile of choice:

In Barlow Clowes Lady Justice Arden (as Mummery LJ had done before her in Agulian) considered the basis upon which the judge’s findings could be reviewed on appeal. Lady Justice Arden reminded herself (as do I) of the advantage the trial judge has over an appellate court when considering primary findings of fact [4] and that an evaluation of facts should lead to a similar reluctance to interfere in the decision of the court of first instance as in relation to findings of primary facts. Arden LJ however, went on to say:

Arden LJ dealt specifically with the intention required for a domicile of choice starting her analysis in this way:

Arden LJ also considered the House of Lords decision in Udny (referred to by the judge in his judgment) setting out the passage from Lord Westbury at paragraph [34] above. Arden LJ went on:

Finally in reference to Barlow Clowes, Arden LJ rehearsed the point that a finding as to domicile requires a careful evaluation of all the facts. She quoted what she described as a “memorable passage” from the judgment of Mummery LJ in Agulian:

Mr Scott on behalf of the husband submits that the judge having set out in unequivocal terms that an intention to reside permanently, or for an unlimited time in the given country must exist, then lost sight of this essential feature when applying the law to the facts as he had found them. Mr Scott submits that the judge omitted to apply a crucial aspect of the law, namely that a domicile of choice can only be acquired if the intention to remain permanently or indefinitely is established whilst a person is resident in the relevant country. In support of this submission Mr Scott sets out the following passage from Dicey 6-042

Mr Scott submits that the residence/intention test must then be set against the judge’s central findings [63] and [64], repeated here for the purposes of this analysis:

Mr Scott submits that although the judge referred to the wife having a “singular and distinctive” relationship with a new country (per Arden LJ in Barlow Clowes at [14]), he did not consider the fundamental question of whether the wife had an intention in 1995 to 1997 to reside permanently or indefinitely in England. If, Mr Scott submits, he had asked himself that question, the only possible answer would have been that she had no such intention.

Mr Scott therefore says that the judge erred in law in asking himself the wrong question but that, even had he asked the right question, the wife would still have failed to discharge the burden of proof to establish that she had acquired a domicile of choice in England between 1995 and 1997.

The judge appeared to treat the period from 1995 to 2000 as a continuum and to find that the domicile of choice was established during that period. In my judgment the judge in doing so made an error of law. The judge did not find that a domicile of choice had been acquired by 1997 (as a result of the combination of residence and intention) and it could not, as a matter of law, have been acquired between March 1997 when she ceased to live in England and 2000, the date identified by the judge.

Mr Scott submits that it may be that the significance of the year 2000 in the judge’s judgment relates back to [38] of his judgment (where the judge records the wife’s evidence to the effect that, after 2000, she came to regard the Fulham property as her home.) Even if the wife had a change in attitude such as to have amounted to an intention, Mr Scott reminds the court that the formation of an intention at a time when the person is not living in the country concerned cannot establish a domicile of choice.

Mr Hale submits that the passage from the wife’s statement set out at paragraph [16] above, confirmed by the wife in oral evidence, is sufficient to imbue an intention on the wife’s part, with the necessary quality of permanence, between 1995 and 2000. The findings the judge made in relation to the period after the wife had left England in 1997 and up to 2000, he said, were appropriately and properly capable of supporting such a finding. Mr Hale went on to submit that a proper reading of paragraphs [63] and [64] of the judge’s judgment, when considered against the backdrop of the totality of the judgment, should allow the court to imply that the judge had found the wife to have necessary intention when she was living in Manchester between 1995 and 1997 (referred to in error as London by the judge).

With respect to Mr Hale’s tenacious argument, in my view the passages of the judgment upon which he relies cannot bear such an interpretation. The wife came to this country specifically to study for her Master’s degree. There was no suggestion that she intended to remain permanently or indefinitely and indeed she left England in March 1997 to work abroad, even before her degree was awarded in July 1997. There was no evidence at that time that she had any plan to return to live in England. I accept that there can as the judge put it be a “developing picture” as to intention culminating in an intention engrained with the necessary quality of performance but that ultimate intention must be concordant with residence.

The judge found that [61] whilst the wife’s two periods of residence were “very temporary” they were not indicative of “passing through”. It is right of course that an extended period of residence is unnecessary, but there was neither evidence of, nor a finding to the effect that, the wife formed the requisite intention during the period of her time in Manchester to continue to reside permanently or for an indefinite time in England.

The “developing intention” the judge described, said to replace her relationship with London with that which she had had in Ireland from “1995 onwards (more strongly from 2000)” or “from 2000 at the latest (though it was a developing picture from 1995)”, does not in my judgment, show the necessary legal co-existence of residence and intention. Between 1995 and 1997 the wife was a 23 year old student who had come to the UK specifically to do her Master’s degree. She had already done an Erasmus scholarship abroad and was busy applying for foreign internships during the course of her post graduate study. In my judgment there was no, or no sufficient clear and cogent evidence by which the judge could have concluded that, at that young and itinerant age, the wife had formed the necessary intention to leave behind her domicile of origin of Ireland and acquire a domicile of choice in England.

In my judgment ground 4 of the appeal, that the learned judge erred in finding that the petitioner had acquired a domicile of choice in England during the period between March 1997 and 2000, must succeed.

The wife has filed a Respondent’s Notice. Whilst seeking to support the judge’s conclusions at paragraphs [63] and [64], Mr Hale submits that even if the ground of appeal is made good, it remained open to the judge to have found that the wife had acquired a domicile of choice in England between October 2001 to November 2002 when she was resident in England on the second occasion.

Mr Hale sets out a number of findings made by the judge which specifically relate to the period October 2001 to November 2002 (when the wife was resident in London) and then from November 2002 to date. These include in more detail and specificity matters summarised at paragraph [29] above.

Mr Hale submits that during the period October 2001 until November 2002, whilst the wife was resident in the Fulham property, she had come to see London as her home. Whilst only resident in London for little under a year, Mr Hale submits she laid down “an anchor” in London sufficient for the judge to find that it became her permanent home and domicile of choice.

One difficulty with this submission is that the judge did not consider the nature and quality of the residence at that time as he had already found that, as part of a continuum, the wife had already acquired a domicile of choice in England. He did not therefore specifically consider whether she had, or had not, the requisite intention coupled with residence so as to have allowed her to have acquired a domicile of choice during this second period of residence in England.

By her Respondent’s Notice, the Respondent seeks to uphold the judge’s judgment on the basis that, “the evidence combined with the judge’s analysis and findings clearly show that the wife acquired a domicile of choice by the latest between October 2001 and November 2002 when she was living in England”.

Mr Hale submits that the judge’s finding at [61] is critical to such a finding:

Mr Hale submits therefore that by November 2002, at the latest, the wife had acquired a domicile of choice in England and has never lost it.

It is undoubtedly the case that the period of 11 months could be more than ample for the residence criteria to have been satisfied. What has then to be considered is whether an intention to reside permanently or indefinitely in England coincided with that period of residence.

Mr Hale’s submission is that the court must look at the judgment as a whole and that, whilst a counsel of perfection may have required the inclusion at paragraphs [63] and [64] of words to the effect that the wife had the necessary “intention at that point,” it is, he submits, implicit when one looks at the whole tapestry of the judgment. The judge’s finding, he says, that England became the wife’s “adopted home” in place of Ireland, makes it clear that the judge had in mind both residence and intention. Even if, Mr Hale says, the judge was in error in relation to the period of time before 2000, the judge was entitled to look at the evidence after 2002 as evidence in support of an intention having been formed in the period of residence in 2002.

Neither party has asked this court to remit the matter for a rehearing in the event that the appeal is allowed. The primary findings of fact are in their essentials unchallenged by the husband. I have therefore considered with care, not only whether the judge fell into error but, whether, had the judge focused on the period of residence relating to the 11 months between November 2001 and November 2002 he could properly have concluded that at that time the wife had the requisite intention to make England her permanent home? In other words, could it be successfully argued that the judge’s findings at [63] that the wife, even though working abroad, viewed London as her “base, her adopted home” had in the brief period she was resident in England in 2001/2002 proved the requisite intention.

In my judgment, on the facts of the case that is not a conclusion that would have been open to the judge and the Respondent’s Notice must therefore be dismissed.

In Barlow Clowes Arden LJ spoke of the need to ‘amplify’ two principles [9]. The first of these was that:

It was in this context that Arden LJ said:

In my judgment the critical difference between the present case and, for example, an immigration case where intention can be established in a day, is that the immigrant, whose intention is in place prior to taking up residence, arrives in this country and takes up permanent residence, indefinite in its contemplation. This is in stark contrast to the wife in the present case who came to England on a fixed term contract and, within four months at most, was looking for employment abroad. She took up that employment abroad and has not been back since, now some 17 years ago.

It follows that the reference to ‘singular and distinctive’ and ‘ending his days in that country’ must be considered in the context of the requirement for there to be a fixed intention to reside in a country for the indefinite future. In my judgment, temporary residence of eleven months, but with an expressed intention to retire to this country in several decades time is not enough without more cogent evidence with which to loosen the strong ties with a domicile of origin and to create a replacement domicile of choice. In the present case, far from establishing herself and her family in England following her period of residence between 2001 and 2002, the wife chose not to marry, holiday, spend her maternity leave or even to give birth to her second child, in this country.

In my judgment there was no evidence from which the judge could have concluded that in 2001 the wife took up residence in England with the intention of establishing permanent or indefinite residence. The judge was, in my view, rightly concerned about the wife’s emotional detachment to England. Whilst it was her fiscal base and she utilised the country’s medical expertise, she demonstrated no personal nexus never choosing to spend time or just enjoy being in, what was supposed to be, her “adopted home”.

In the same way that the fact of living in England for 34 years was not on its own enough to render England a domicile of choice in Agulian neither, in my judgment, was the wife’s expressed intention to retire to this country in several decades time in 2037, some 36 years after her last period of residence, enough without more, to demonstrate sufficient intention.

I should make it clear that in reaching this conclusion on the facts of this case, I am not saying that it is not possible for a person who largely, or even exclusively, works abroad to acquire a domicile of choice in a country they regard as their ‘home or to which they have a ‘singular and distinctive relationship’.

The second of the two principles Arden LJ amplified in Barlow Clowes was that “All the facts which throw light on the subject's intention must be considered”.

It follows that on the facts of a case that a judge may well find that a person working abroad has nevertheless acquired a domicile of choice in England, but such a conclusion will only be reached after careful consideration of all the facts. In such a case, one would expect that England would truly be “home”, and that, all the evidence would point to that person as regarding him or herself as ‘living in England but working abroad’. On the evidence before the judge, that could not possibly have been said about the wife. In fact, on the chronology as set out by the judge, if any country had qualified for that tag, it would have been Italy, not England a country for which, it appears, the wife has little if any affection and, whilst maintaining advantageous fiscal ties to England, she chooses largely only to visit for medical treatment.

In my judgment the judge did not in the words of Longmore LJ have,

The appeal must therefore be allowed and the respondent’s notice be dismissed. It follows that the wife is not domiciled in England for the purposes of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and Article 7 of the EU Regulation 2201 of 2003.

I agree.

I also agree.