McGregor v Smith (Domicile/Misuse of Divorce Portal)

This is an unusual application. The Applicant, Mr McGregor has filed an application for divorce on 17^th February 2025 in which he states that the courts of England and Wales have jurisdiction because he “is domiciled in England and Wales”. He continued to pursue this divorce until a hearing before myself on 15^th January 2026 at which point he stated that in fact he is domiciled in Bali, Indonesia and as a result this Court does not have jurisdiction. Even more remarkably, the Applicant had filed 3 previous divorce applications, and he stated in each of those that he was domiciled in this jurisdiction.

The Respondent, Ms Smith argues that the Applicant is indeed domiciled in this jurisdiction. It is her position that the reason for the volte face by the Applicant was that he wished to avoid this Court scrutinising her allegation that the Applicant had acted fraudulently in attempting to procure a divorce by submitting an acknowledgement of service which he knew was not genuine.

At the hearing on 15^th January 2026, I set aside the acknowledgment of Service and set down this hearing to determine two separate issues:

The Applicant has been represented by Ms Wilkie of Counsel on a direct access basis and Mr Benson has acted for the Respondent instructed by Michael Allum and Annie Boxer of The International Family Law Group. I am grateful for their very helpful position statements and the courteous manner in which they have conducted the hearing. I have read all of the relevant documents within the main bundle together with a number of documents that have been referred to within the supplementary bundle. I have also heard evidence from the parties remotely, as the Applicant is resident in Dubai and the Respondent in Australia.

Factual Background

The Applicant was born in England in 1970 and is therefore now aged 56. He lived and worked in England until 2013 when he moved to Dubai for work purposes, having previously worked there from 1992 to 1995. He has lived and worked in Dubai since 2013. He has two daughters from a previous relationship who have both moved to Dubai in 2024. He has his father in England who is now aged 81 and has cancer. His brother also lives in England, but they have not seen each other for the last two years. He states that he only occasionally visits the UK. The Applicant bought 2 investment properties in the UK in 2016 and 2017.

He now states that he considers that he lives in Bali but works in Dubai. In terms of his connection with Bali the Applicant has purchased 4 properties there and he has built one property where he intends to live long term. He accepts that he has spent roughly 25 days per year for the last four years in Bali. He has set up companies in Bali together with bank accounts and he rents out properties in that jurisdiction. His Airbnb profile used to state that he lived and worked in Dubai but has recently been amended to state that he lives in Bali.

The Respondent was born in Australia in 1969 and is now aged 57. The parties married in Australia in October 2015 and lived in Dubai together. They separated in April 2020 and the Respondent returned to live in Australia where she has remained.

The Divorce Applications

The present application for Divorce was filed by the Applicant on 17 February 2025. A purported acknowledgement of service was provided electronically on 28^th February 2025 by which it is stated that the Respondent did not dispute the divorce and agreed that the courts of England and Wales have jurisdiction. It ends with a statement of truth with the words “I believe the facts stated in this application are true” this is followed by an electronic signature of the Respondent. It is accepted by both parties that this response was not provided by the Respondent and as a result I set aside that Acknowledgement of Service in the order of 15 January 2026.

On 25^th of February 2025 the Applicant sent a letter to the Respondent by courier to an address in Australia. In that letter he stated “as we approach the five year anniversary of our separation, I wish to commence divorce proceedings. I am sure you will agree there is no reason for us to remain married. …as I have no contact details for you apart from this, your work address, I would request that you contact me through my email” and his email and phone number were provided. The Respondent states that she replied to this letter on 3 March 2025 through her “111 Gmail” address stating that he could contact her on that address. A chasing email was sent on 14 March when no reply had been received together with a WhatsApp message. The Respondent states that she still received no reply as result of which she contacted HMCTS in an attempt to discover what has occurred and she states that that was the first occasion upon which she discovered that there was a live divorce application.

On 3 April 2025 the Applicant emailed the Respondent at her Gmail address in which he asked three questions:

The Respondent then filed an application for disclosure of the court files from HMCTS, this is dated 15 May 2025. There was no agreement on that issue, and it was not until the hearing before myself that such disclosure was ordered. The Respondent would state that it was only after that disclosure was obtained that she understood the full history behind the divorce applications as the Applicant had never made her aware of what had occurred up until that point.

It is important to understand the precise history in order to be able to reach a decision as to how the purported Acknowledgement of Service was created. Mr Benson has set out the chronology in some detail within his note, and I make no apologies for setting out the chronology in detail.

First Divorce Application.

This was filed on 19 September 2021. The Applicant had instructed TWS solicitors who are duly qualified in Dubai and this jurisdiction. The address for service for the Respondent was the address at which the Applicant was living at the time in Dubai. The Applicant stated in his oral evidence that he had instructed his lawyer that the Respondent had disappeared and that he did not know whether she was in Sydney, Melbourne or Crookwell and that he was advised to use her last known address. He added that he was also told that he could use any random address and that it would not need to be an address used by the Respondent. There has been no disclosure of the advice that he received.

The Applicant accepts that he had stated within the application that he was domiciled in England and Wales and that his solicitor had informed him that he should not seek a divorce in the United Arab Emirates. The Applicant accepted in his oral evidence that he lied within this application as the address that he used was the former matrimonial home which he was aware had been sold. The Applicant states that he did not have a confirmed address for the Respondent at that stage, despite his efforts to obtain one through emails directly to the Respondent at her email address and WhatsApp messages.

The Applicant filed an application for deemed service of this Divorce Application on 10 January 2022. In the body of that application it states “My wife is intentionally trying to frustrate the process by avoiding service of the divorce petition… My wife is not cooperating and has confirmed verbally she will not respond to the divorce petition nor any attempts to further the divorce process. She will not give written proof of this.” In oral evidence the Applicant accepted that he had signed the statement of truth for this application but that it was just two days after his mother died and he was just following advice and probably did not read it in full. He accepted that it was not correct that he had spoken to the Respondent, and he accepted that he had not served her. The application for deemed service was refused as the petition had been returned as undelivered and the Applicant had not provided any evidence that the Respondent had been served.

Second Divorce Application

This is dated 31 March 2022. At this time, he was acting in person. He repeated the statement that he is domiciled in England and Wales, although it is noted that in his witness statement he states that by early 2022 he had formed a settled and irrevocable intention that Indonesia would be his permanent and final home. The Applicant states that he had stated he was domiciled in England and Wales because that was the advice he had been given in the first petition and he assumed that to be continuing.

The address for service upon the Respondent was a different address in Dubai. The Respondent states that she is unaware of this address. The Applicant accepts that he was aware that this was not the Respondent’s address, but he was simply following the principle of the advice that he had been advised earlier, that is to say that he could serve it at any address whatsoever. In his oral evidence, the Applicant accepted that it appeared to be a residential address and that he has not said whose address it was then added that it used to be the address of his friend, Mr Haydar, who has provided a statement within these proceedings. The Applicant accepted that the Respondent had no notice of this second divorce application.

The Applicant filed an application for deemed service of this application on 30 May 2022. That application is signed by the Applicant with a statement of truth. In the body of the application it states “My wife has verbally advised me that she will not act on, or respond to the divorce petition, so as to frustrate the process. She will not confirm this in writing despite my request for the same.” In his oral evidence he stated that it was clear that she had not verbally told him this to be the case and that he deliberately lied.

The application was not served as a result of which HMCTS sent an email to the Applicant on 28 July 2022 in which they asked if he knew “of any other address at which the Respondent is living or likely to receive documents posted to them there, you should supply that address to us, so that a further attempt at postal service may be made.” This letter made it clear that the address to be provided was one at which the Respondent would receive the post and is not consistent with the advice that the Applicant states he had been provided by his solicitors. The Applicant responded to that request by stating that the postal service in the United Arab Emirates only delivers to PO Box numbers and he stated “I can therefore provide an address involving her company name and PO Box and then she should receive the papers. The new address (but same P O Box number) is Francs Smith c/o (a company name) Middle East FZE…… Dubai.”

The Applicant informed the court when giving his oral evidence that this is the address of Mr Haydar’s company and that everything that he had said in that email to HMCTS was a lie.

The applicant became aware that he was not able to file a second application whilst the first application had not been disposed of and as a result, he made an application to withdraw the first Divorce Application on 14 September 2022. Once more he used the company address of his friend, Mr Haydar as the Respondent’s address for service. In his oral evidence he stated that he accepted that he was trying to obtain a divorce without the Respondent’s knowledge or consent, and he states that this was due to not having an address for her. He stated that he continued to work on the principle that he was advised to use any address due to not having any confirmed address for the Respondent despite his requests for one. As I stated above this is in complete contradiction to that which he had been told by HMCTS.

Third Divorce Application

There is a third application filed by the Applicant dated 4 October 2022. It is the evidence of the Applicant that he has no recollection of this and that he only filed three applications and not 4 as would be the position if this application had been filed. The disclosure that has been provided by HMCTS appeared to prove the Applicant did indeed file this application. Once more it states that the Applicant is domiciled in England and Wales and it refers to previous applications. The address for service is again the company address of Mr Haydar. I am satisfied on the balance of probabilities that the Applicant did indeed file this application even though he states he has no knowledge of same.

On 23^rd of January 2023 the Applicant filed an application for deemed service of this third divorce application. As ever this application was signed by the Applicant with a statement of truth. The address for service was once more the company address of Mr Haydar. In the body of the application the Applicant stated “I am aware that my wife has received the divorce papers but is choosing not to respond to them. Communication between myself and my wife has broken down irrevocably, and she will not respond to the papers. This can be evidenced by the attached email correspondence.” He later adds within the application that “In the attached emails, the respondent acknowledges receipt of the papers but states, “Yes I got them and I’ve seen what you wrote about me. I have no intention of responding and no interest in what you want me to do.” To this end I seek deemed service, to enable me to proceed with the divorce.”

The email trail that is attached to the application uses an email address for the Respondent ending “69@hotmail.com”. In the first email from the Applicant to this email address he states

In his oral evidence the Applicant accepted that it was not true that he had served the papers and that this was not an email address for the Respondent. He accepted that he had lied previously when he said that he knew nothing about the “69@Hotmail.com” email address. He added however it was his evidence that he did not set up the email address but did not go into any further detail.

The application for deemed service was refused due to the fact that there was another live divorce application on the Court system. There were then applications to withdraw the petitions and also for a further deemed service application where once more the Applicant stated that he was aware the Respondent had received the divorce papers but was choosing not to respond to them and again referred to the email trail. The deemed service application was refused but the second and third Divorce Applications were subsequently withdrawn and dismissed by order dated 6 January 2025.

Fourth Divorce Application.

The present application was filed on 9 February 2025 and issued on 17 February 2025. The application process was all online by this stage and the email address provided for service was the 69@Hotmail.com address. It was from that address that the Acknowledgement of Service was filed and HMCTS have confirmed that it was this address which was given access to the portal. This brings us back to the point that I have already set out at paragraph 10 above. The question is how was the Acknowledgement of Service provided?

On 15 May 2025 the solicitors acting for the Respondent stating that someone had filed an Acknowledgement of Service purportedly on behalf of the Respondent and that the 69@Hotmail.com email address had been used. They also sought for the Applicant to provide all documents in his possession relating to the divorce applications. A response was sent by solicitors on behalf of the Applicant on 2^nd June 2025 in which they stated that they have provided all of the email addresses that they had for the Respondent and that “the one that you say was used to far the acknowledgement is not one of them.” Once more in his oral evidence the Applicant said that what he had told his solicitor at that time was not true.

The Applicant relied upon the witness statement of Mr Haydar. Within that statement it states that he has known the Applicant for many years and considers him as a close friend and that he had seen a number of documents relating to divorce proceedings previously. He adds that at the time he believed that submitting the Acknowledgement of Service might assist in progressing divorce proceedings and that he was aware of and had previous knowledge and use of the email address …69@Hotmail.com during the Applicant’s previous divorce proceedings. He adds that in late February 2025 he accessed the online divorce portal and submitted the Acknowledgement of Service using details relating to the Respondent. He did this he states on his own initiative and the Applicant did not ask him to do this and was not present or involved in the process in any way. He added that the Applicant had no knowledge that he intended to do this.

It was intended that Mr Haydar would give oral evidence within this hearing but on the day of the hearing he stated that he was not able to do so and did not attend. In those circumstances it is difficult to attach a great deal of weight to the statement that he provided which is dated 11 March 2026.

What findings do I make in relation to the purported Acknowledgement of Service? The onus is upon the Respondent as she is raising this matter although the Applicant accepts that it was not a document that was provided by the Respondent. The Applicant accepted in his oral evidence on at least six occasions that he had been dishonest in the manner in which he pursued the numerous divorce applications. He accepted that he was attempting to obtain a divorce behind the Respondent’s back without her having knowledge of the same. He hid behind the purported advice that he states he was provided that he could serve the documents at any address whatsoever. He never provided any evidence of that advice and it goes against any commonsense approach and indeed the information that he was provided by HMCTS as to how to ensure the respondent is served. I am not satisfied that that was the advice that he received.

It must have been the Applicant that was involved in the creation of the 69@Hotmail.com email address. He included it within his third Divorce Application knowing that it was not the Respondent’s address. He then entered into the charade of the email correspondence that he attached to his application for deemed service in January 2023, set out above. He was well aware that he was not having a discussion with the Respondent and accepts that it was a lie she had received the papers. He did not however state that it was him that set up the email address in the first place.

I appreciate that the court has not heard from Mr Haydar, but it is difficult to see any explanation which would not involve the Applicant being involved in the creation of this email address. It had to be included by him on the Divorce Application. If it was a creation of anyone else, then that person must have informed the Applicant about it in order for it to be included. Further, the Applicant entered into the fake discussions with that email address knowing that it was not the Respondent at the other end. The only possible explanation is that the Applicant was well aware that the email address had been created either by himself or someone else on his instruction and that he was using that to create evidence that the Respondent had been served. This is all in keeping with his desire to obtain the divorce without the Respondent knowing and having had previous failed applications for deemed service. It follows that I am satisfied on the balance of probabilities that the Applicant was fully involved in the creation of this false email address and was well aware of what was occurring throughout. He was the driving force behind the fake Acknowledgement of Service even if it was not him that actually sent it.

As was stated within the hearing once I have made the decision that the Applicant was dishonest (although he accepted himself on numerous occasions that he had been dishonest) then I must give myself the Lucas Direction. That is to say that there are many reasons why an individual may lie on particular occasions and just because they have lied on one occasion does not mean that they have lied on every occasion. Therefore whilst the credibility of the Applicant is seriously flawed, I still have to consider any individual piece of evidence on its own merits. I clearly hold that in mind whilst considering the issues in relation to domicile.

Domicile

The Law

The Domicile and Matrimonial Proceedings Act 1973 sets out the following in s.(5)(2):

“The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if on the date of the application:

....

(g)

either of the parties is domiciled in England and Wales.

It follows that in order for this court to consider the divorce I must be satisfied that one of the parties is indeed domiciled in this jurisdiction and was so at the time that the application was filed. The Respondent accepts that she was domiciled in Australia at the time and consequently the only basis upon which jurisdiction can be found is if the Applicant was domiciled at the relevant time.

The Court of Appeal set out the test for domicile by reference to the Rules set out in Dicey, Morris and Collins on the Conflict of Laws in Raman v Kist-Ramana [2025] EWCA Civ 102 :

At paragraph 39 of the judgment it states: “As referred to above, Rule 12, the acquisition of a domicile of choice requires “a combination of residence and intention of permanent or indefinite residence”. As referred to below, a domicile of choice is lost when these two elements are “given up”. They are, therefore, the obverse of each other. Residence requires no elaboration. It is the latter element, intention, which requires further consideration.”

In Divall v Divall [2014] EWHC 95 Moor J set out the following in relation to how difficult it is to displace domicile of origin:

“27.

Everyone at birth receives a domicile of origin, which is attributable by operation of law. A legitimate child takes her father’s domicile. A domicile of origin is distinguishable from a domicile of choice in two respects: (a) a domicile of origin is more tenacious: “it’s character is more enduring, it’s hold stronger, and less easily shaken off”

28.

Domicile of origin are notoriously adhesive. Clear evidence of change is required. The acquisition of a domicile of choice (whether changing from a domicile of origin or of choice) requires physical presence, although it need not be long, plus an intention to remain permanently or indefinitely. A domicile of origin is never extinguished, though it can be displaced by the acquisition of a domicile of choice (which if lost itself leads to the revival of a domicile of origin). To acquire a domicile of choice requires two elements to be present at the same time:

i.

Residence; and

ii.

Permanent or indefinite residence.”

In Agulian v Cyganik [2006] EWCA Civ 129 at para 53 it was stated that “all the cases state that a domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice.”

The Facts on Domicile

The Applicant states that he satisfies the test for domicile on the following factual basis. He was born in the UK and lived here until he commenced working in the UAE in 1992 where he remained until 1997. He then lived in the UK once more until relocating to UAE in 2013 for work and he has remained working there since that date. He accepts that he purchased 2 properties in England in 2016 and 2017, but these were purely for investment purposes and are rented out. The Applicant states that he has been attempting to sell these properties since 2024.

The Applicant states that from early 2022 he formed a settled and irrevocable intention that Indonesia would be his permanent and final home. He purchased 3 properties in Bali in February 2022, and a 4^th one in November 2022. He incorporated a company in Bali and set up both personal and business bank accounts there. He also purchased land and has built his own property in Bali where he intends to live full time upon his retirement which he states will be in September 2026. It is the Applicant’s case that this property (unlike the other Bali properties) is not rented out. In support of his position the Applicant states that he has been registered for tax purposes in Bali since April 2023. He has also obtained ‘the most permanent residential status that was permissible’ in Indonesia and that should lead to him obtaining a more permanent residency visa and eventually an Indonesian passport after 10 years. He has also registered his Last Will and Testament in Indonesia.

The Applicant argues that he has made it clear by his actions that he is no longer domiciled in England. These include:

In general, there is little disagreement as to the factual position but there were two areas in which there was a dispute which require adjudication:

Conclusions on Domicile

There is no doubt that the Applicant’s Domicile of Origin is the UK. It is not the Applicant’s case that the UAE ever became his Domicile of Choice, as he accepts that he has never formed an intention to remain there indefinitely. As a result, the only options for his domicile are the UK or Bali, Indonesia.

Has the Applicant proved on the balance of probabilities, that his domicile of choice as of early 2022 is Bali, Indonesia? The most striking difficulty with the Applicant’s case is that at all times the authorities note that in order to prove domicile then residence must be proved. As set out above: “Residence requires no elaboration” and “law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place… it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.” (Barlow Clowes above). The Applicant accepts that he has only stayed in Bali for a maximum of 25-26 days for each of the last few years. These days are limited due to the fact that he can only stay there during his periods of annual leave. Can this amount to residence?

I do not accept that such a short period of time each year can be sufficient to state that an individual resides there, in the present term. The Applicant states that the only reason that he spends so much of his time in the UAE is due to his work commitments. I accept that this may be the case, but it creates a factual reality that he is spending a very limited amount of his time in Bali. I accept that the authorities state that it is possible to obtain a domicile of choice by residing in a country for a short time so long as there is also the intention to remain there permanently and indefinitely. However, in all of the cases that have been referred to, the individuals concerned are actually living in the particular jurisdiction at the relevant time and not merely spending short periods each year. As was set out in Divall above it “requires physical presence, although it need not be long, plus an intention to remain permanently or indefinitely” .The Applicant has to prove that he was resident in Bali as at the time he filed his application in February 2025 and the reality is that he was not, whatever his intention to do so in the future might be. On that simple factual basis, I am not satisfied that he has proved that Bali is his domicile of choice.

In any event, if I am wrong on the issue of residence, I am not satisfied that he has the intention to move there permanently in the near future. The Applicant argues that he will move there in September 2026, but he has failed to prove that to the requisite standard and as a result, if it is relevant, I cannot be satisfied that Bali will be his chief residence, or indeed ‘residence’ at all at any time in the foreseeable future.

Further, the Applicant does not at present have the right to permanently remain in Bali as he has not obtained the appropriate visa and consequently, even if he wished to live there permanently, there is no guarantee that this could occur at present. The Applicant has not provided any corroborative evidence that he is likely to obtain a more permanent visa, although it is possible that this may occur. This is not fatal to his application but simply adds to the factual difficulties that he faces.

In considering the issue of whether an individual has proved that he has acquired a domicile of choice the Court must consider the whole factual matrix. Clearly, in this case this includes the facts relied upon by the Applicant in terms of the properties in Bali, his businesses there and the bank accounts, but those are not sufficient to overcome the fact that he simply does not presently reside in Bali, and vitally, he did not do so in 2025 when the application was filed.

It follows from all of the above that I am not satisfied that the Applicant has provided the clear, compelling and cogent evidence to dislodge his Domicile of Origin as being his present domicile. Again, I accept what the Applicant states about his reduced connections with the UK but that is not sufficient to dislodge the “notoriously adhesive” nature of a domicile of origin.

The application by the Applicant to dismiss his application for divorce on grounds of lack of jurisdiction is dismissed.

I have not heard any submissions on costs. On the basis that the Applicant has not been successful on either of the two points that have been raised, and in considering the nature of the findings, it seems highly likely that there would be an order for costs against the Applicant. I would hope that the parties are able to agree a costs order, but if that is not possible then they can each provide short written submissions on costs within 14 days, limited to 5 pages each.