V v V

The issue here is whether the court has jurisdiction to entertain a divorce petition issued by Mrs V (the wife) on 1 April 2010.

The claimed basis for jurisdiction is provided by indent 5 of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 (“Brussels II Revised”):

The wife, upon whom the burden of establishing jurisdiction rests, contends that she had been habitually resident in London since August 2008, and thus for over a year at the time of her petition.

The husband, Mr V, disputes this. He accepts that the wife was habitually resident in London between August 2008 and December 2009 but contends that she was not habitually resident (or even resident) in London between December 2009 and March 2010, but rather that she resided in Switzerland during that period.

I will set out the facts (making findings where necessary), consider the applicable law, and state my conclusion. I will make comment about the level of costs.

The husband is 41 years old. He is a member of a Greek shipping family. As a young child he moved with his mother to Switzerland and attended school there before going on to university in the United States. In 1994, he moved to England. In 1996, he was the beneficiary of family litigation which provided him with a substantial personal fortune, from which he bought a property in Kensington, which I will refer to as "the London house". He has not been employed in recent years and describes himself as a private investor.

The wife is 38 years old. She was born and brought up in Brazil and then attended schools in the United States and Switzerland. She went to university in Paris before attending an art course in London, following which she briefly worked in a gallery in New York.

In 2001, the husband was living in London. The wife had returned to Paris and in the summer of that year they met in St Tropez. They began to live together in the London house and in 2003 they married.

In 2004, substantial work was carried out on the London house, overseen by the wife and paid for by the husband.

In July 2005, the couple moved to Los Angeles and their first child, a daughter, was born in the following month. The London house was let for five years. Their very extensive belongings were placed in storage.

There is an issue between the parties as to the reason for leaving London at this time. The wife says that it was prompted by the husband's desire to be out of the country for three years so as to reset the clock of his non-domiciled tax status and enable the family to live in London uninterrupted once schools were required. The husband says that they left simply because they wanted to. I find that tax planning was a major reason for leaving London. This is effectively reflected in a later e-mail from the husband to an immigration solicitor in January 2009, referring to "the 3 years away that I needed to restart my non-domiciliation from zero years." In this family, other priorities tend to take second place to tax considerations.

At the end of 2005, the family moved to São Paulo, where they lived in rented accommodation until June 2008. Over this period, they travelled widely to mainland Europe, England and Greece, the husband's family owning a holiday home in Crete. In March 2008, they visited London to arrange a first school place for their daughter. They spent the summer (and also the following Christmas) in Switzerland, staying in the husband's family chalet in Gstaad, which is shared with his mother and other members of his family. In July 2008 their second daughter was born in Milan.

In August 2008, the family moved back to England and rented an address until the London house became available again in July 2009. The furniture was then taken out of storage and a certain amount of redecoration was undertaken by the wife. The 2009 summer holidays were spent in Greece and in Gstaad and the children began school and playgroup in September. The wife began a part-time interior design course, which required attendance on Wednesdays.

The husband decided not to remain in England and from the 2009 summer holiday he moved to live in Gstaad. He was particularly anxious to avoid UK tax liability in relation to a substantial piece of business on which he was working. The wife and children visited him in Switzerland over the October 2009 half term. By this time the older child was, unsurprisingly, missing her father

Since 2009, the need for the family to restrain its expenditure has been apparent to both spouses, and in particular the husband.

In November 2009, the wife negotiated with the older child's school for her to be taken out of school for the first term of 2010 so that she could spend more time with her father in Switzerland, where she would go to school. It was clearly stated that the child would return to school in London in April 2010, and that the missed term’s fees would be paid anyhow. The letter making this request to the school was approved by the husband. In Switzerland, the husband submitted an application to an international school in Gstaad. This explicitly referred to the child attending for the first term of 2010 only. Both schools have confirmed that their understanding was always that the child would return to continue her education in London in the following term.

At the same time, the wife informed her course provider that she would be commuting back to London on Wednesdays during the January-March 2010 term only.

On 18 December 2009 the wife and children went to Gstaad. The wife remained there until 21 March 2010, but she returned to the London house frequently, spending 28 nights there during the three-month period. On one occasion, the wife was detained for several hours at the airport when entering England because of uncertainty about her immigration status.

In February 2010, the wife was looking for rental properties in London on the basis that the London house would be sold at some point after July 2010. The search was conducted through an agent who is a lifelong friend of the father.

The children returned to London on 23 March, being delivered by their father, who returned to Switzerland without passing through passport control.

On 24 March, the wife attended an interview at the Home Office in support of her application for a UK residence permit, which was granted on 30 March. The process, which began in 2009, had been carried through with the full knowledge and support of the husband.

On 1 April 2010 the wife issued her petition, but did not serve it. On 15 April, the husband came to London. The wife asked him to accompany her to a wedding in Paris at the weekend, but he preferred to be with the children in London. Words followed. On 19 April, following the wife's return to London, her divorce petition was served. On 21 April the older child’s school term began.

The wife's explanation for the time spent in Switzerland is that it was nothing more than a temporary time-limited arrangement for the benefit of the older child. In her affidavit, she sets out the details at paragraphs 31-33:

The husband says that, on the contrary, it had been agreed that the wife and children would be moving permanently to live with him in Switzerland. In his affidavit, he sets out the details at paragraphs 43 and 45.

The husband says that the account given to the schools that the child would be returning to school in London had to be given, as the wife's application for a UK residence permit would otherwise have been prejudiced. In relation to the trip to London at the end of March 2010, he says that he expected the wife and children to return to Switzerland after about ten days in order to resume life and schooling there.

I resolve this central factual issue in favour of the wife. I find that the account that she gives is likely to be correct and that the husband's account can be rejected. My reasons are as follows:

My overall finding on this issue is that the wife has lived in London since August 2008. However, she and the children have been away on these significant occasions (and no doubt on others, and elsewhere):

Within the last period of three months the wife spent about two thirds of the time in Switzerland and one third in London.

The nature of this family’s background provides an important context when it comes to interpreting the movements of its members. Just as there are multinational companies, so this is a multinational family. Their lives have not been tied down by mundane considerations such as financial budgets, local connections, immigration restrictions or language limitations. Instead, they have lived a protracted modern version of the 18th-century Grand Tour, gravitating towards places where the moneyed international social set gathers. The husband, in particular, appeared to struggle in evidence to comprehend the concept of "home" as applying to his family at all. They have, as Mr Scott QC says, shallow roots.

The parties deploy this conclusion to different effects. On behalf of the wife it is said that a term’s absence has much less significance than it would for a more conventional family. On behalf of the husband it is said that the family's itinerant lifestyle makes it easier to interpret the period spent by the wife in Switzerland as a change in habitual residence.

To complete the narrative, the family has remained in London to this date. The London house, the only family home that either of the parties had owned, was sold in November 2010. Each parent has found rented accommodation. The children's main base is with the mother but they spend substantial time with their father.

In May 2010, the husband filed an Answer contesting jurisdiction. In June 2010, he issued Hague Convention proceedings seeking the children's return to Switzerland. In July 2010 he issued divorce proceedings in Greece, which have since been stayed pending the outcome of these proceedings.

I acknowledge the high quality of the submissions I have heard on this issue.

The jurisdictional grounds under Article 3(1) of BIIR are these:

Habitual residence is a concept under European law whose meaning is not in doubt. Its character appears in paragraph 32 of the explanatory note of Dr Alegria Borrás to the equivalent article in the original Council Regulation ("the Borrás report"):

It is well established that one cannot be habitually resident in two countries simultaneously for the purposes of EU law.

In L-K v K [2007] 2 FLR 279, Singer J said this of habitual residence: "By way of gloss on that, it does not have to be permanent. It needs to be habitual. The emphasis is on a person's centre of interests. The verb used is "established" and all relevant factors are to be taken into account."

I also refer to Z v Z [2010] FLR 694, a decision of Ryder J. He considered the relevance of a party's intention when considering their centre of interests, and accepted that intention forms a part of the court's overall assessment and that it takes its place as one of the facts in the case (paragraph 44). Mr Scott argues that this introduces an undesirable element of uncertainty. If intention were synonymous with the subjective, capricious wish-fulfilment of one party, I would agree. The test for habitual residence is objective. But what is meant by intention here is no more than another way of bringing into play the reasons for the parties' actions. Concepts such as "permanent", "habitual", "residence" and "home" have a mental element which the court is well able to assess objectively. I therefore agree with Ryder J in this respect.

Worthwhile matters appearing from the Borrás report are that the grounds for jurisdiction are objective (paragraph 28) and are based on the principle of a genuine connection between the person and the claimed jurisdiction (paragraph 30). In the great majority of cases jurisdiction will belong to the court of the state in which both spouses are habitually resident.

In contrast, the report also refers to two of the grounds for jurisdiction (one being the ground relied on in this case) as being designed for "exceptional cases on the basis of habitual residence combined with other elements." (Paragraph 32) In the case of the fifth indent the "other element" is the requirement of at least a year’s residence immediately before the application was made. In the case of the sixth indent it is the requirement of at least six months' residence and nationality of the state in question, or in the case of the United Kingdom, domicile. Reference is made in the explanatory notes to the difficult negotiations that led to the formulation of each of these grounds for jurisdiction.

The meaning of the fifth and sixth indents has been considered in two decisions of this court.

In Marinos v Marinos [2007] 2 FLR 1018, Munby J held there are two elements to the fifth indent. The petitioner must be habitually resident at the date of the presentation of the petition and must have been resident, though not necessarily habitually resident, in the state for at least a year before then.

In Munro v Munro [2008] 1 FLR 1613, Bennett J considered that the fifth and sixth indents are to be read as imposing a single requirement of habitual residence of at least one year or six months, as the case may be, at the date of the presentation of the petition.

The distinction between the two interpretations depends upon whether one regards the expression "resided there" as implicitly taking colour from the immediately preceding reference to residence that is habitual, or as having an independent meaning.

In the present case, the parties' submissions as to which interpretation is to be preferred were not strongly pressed, perhaps because they were made before the court's findings of fact were known. As it was, Mr Scott indicated a mild preference for the reasoning in Munro, while Mr Peel QC argued gently in favour of Marinos.

As I said in argument, it is unfortunate that families such as these should have to expend resources arguing about the true meaning of a poorly drafted phrase, which defines itself as ambiguous in having attracted two distinguished conflicting interpretations. However, given the issue that I have to decide, I cannot avoid reaching my own conclusion about the nature of the requirement.

I consider that for jurisdiction to be established on the ground specified in the fifth indent of Article 3, the petitioner must show habitual residence at the time of the presentation of the petition and that he or she has been resident in the jurisdiction for at least one year immediately before that date. I therefore find myself in agreement with the interpretation provided in Marinos. My reasons are these:

It is therefore also necessary to consider the question of residence, as opposed to habitual residence.

The recent decision of the Court of Justice of the European Union in Mercredi v Chaffe [2011] 1 FLR 1293 concerning Articles 8 and 10 of BIIR in the context of habitual residence of children distinguishes between habitual residence and "mere temporary presence".

I agree with Munby J that it is possible to be habitually resident in one country and resident (but not habitually) in another. I also agree with him (at paragraphs 74-78) that it is possible to be resident in more than one country, in the sense of having more than one place of residence simultaneously. That was the case in Marinos, where the petitioner had homes in Greece and England, between which she divided her time roughly equally. She described herself as being resident in both countries.

Mr Scott queried whether this can be correct. He argued that it is possible to have more than one residence between which one alternates, but questions whether one can have more than one residence simultaneously. He points out that European law places a high premium on certainty, and in some countries residence permits are required. However, he accepted that there is no authority on the point.

I have no difficulty with the concept of a person being resident in more than one place at a time. It is a description that applies aptly to a number of situations – the family with more than one main home, the person who spends extended periods away at an established place of work. Such a person is of course only present in one place at a time, but the relevant concept is residence and not presence. It makes no sense to regard a person who travels between two homes on a regular and frequent basis as oscillating in perpetual succession between being resident at one and then at the other. This does not accurately reflect ordinary use of language, nor provide any valuable certainty, while any consequences in terms of civil status or tax status can readily be catered for. In particular, since simple residence is not a basis for jurisdiction, simultaneous residence in more than one member state cannot lead to jurisdictional conflict.

I find that the wife was habitually resident in London at the date of her petition. The evidence clearly establishes that it was the place where she had established, on a fixed basis, the habitual centre of her interests. Her home was in London. Most of her social set lives here. Her children had been going to school here. Her doctors and a number of other providers of services were here. Her interrupted course of studies was here. Almost all her belongings were here. The dogs were here.

As an alternative I further find, and for the same reasons, that the wife had been habitually resident in London for at least a year before the presentation of her petition. I do not consider that the absence in Switzerland alters that conclusion. Given my view about the correct legal test, the conclusion in this paragraph is not strictly relevant, but I state it in case my prior legal conclusion is at fault.

Next, I find that the wife had been resident in London for at least a year before the presentation of her petition. I do not consider that the absence in Switzerland alters that conclusion, any more than her other absences can have done. Mr Scott did not suggest that a month in Crete plus a month in Switzerland over the summer holidays of 2009 would amount to a change of residence from London to those places, even though both are familiar family holiday homes. However, he did argue that absence for a school term has a different quality, even if it was on a temporary basis. I agree with that, and in the case of many families it might well amount to a change of residence. In the case of this particular family, I do not so find. It was not in reality a change of residence for the wife, but a temporary presence in Switzerland for the benefit of the husband's relationship with their children. The context is important here, and I prefer the argument of the wife that the family’s way of life makes her absence from London of less significance than it would be in many cases. Her constant return trips to London are also a factor. The period in Switzerland amounted in all to no more than a couple of months of temporary absence, continually interrupted by flights back home. Looking at the matter overall, this relatively short period did not prevent that the wife from being regarded as being resident in London for the year before she presented her petition.

In the alternative, I further find that, even if the wife was resident in Switzerland during the period in question, she was also simultaneously resident in London. Again, this finding is not necessary for my decision, but I make it in case my conclusion in the preceding paragraph is in question.

Finally, although again it is not necessary for my decision, I do not accept the husband's case that the wife was habitually resident in Switzerland during those three months. I find that she has not been habitually resident in Switzerland at any time. Nor can I accept the husband's fallback position, which is that the wife was not habitually resident anywhere during those three months.

For the reasons contained in paragraphs 53 and 55 above (and, were it necessary, for the alternative reasons contained in paragraphs 54 and/or 56), I conclude that the wife is entitled to proceed with her petition.

For what it is worth, I believe that this outcome in fact best serves the purposes of the Council Regulation. I do not accept the husband’s explicit charge that the wife was ‘forum-shopping’. Throughout its existence, this family's connection with this country has been stronger than its connection with anywhere else, and in particular with the husband's chosen forum in Greece. If the wife failed to establish jurisdiction on the basis of her present petition, she would simply issue a fresh petition on undoubtedly firm jurisdictional foundations. The husband's petition in Greece does not qualify under any basis provided by BIIR. He would have had to persuade the Greek court to act on the basis of local law, if such were possible, and a further forum battle would no doubt have followed. If the husband had succeeded in his opposition to the presentation of the wife's current petition, I suspect that it would have turned out to be a Pyrrhic victory, in the truest sense of the word.

These parties have not hesitated to litigate about every conceivable issue. In addition to the issues of jurisdiction and child abduction, the case has constantly been before the court since April 2010. There have been arguments about chattels, occupation and non-molestation orders, freezing orders, interim financial orders, and litigation funding. There have been several hearings about the children, and even though a shared residence order is now in place, a two-day hearing about the precise arrangements is listed for June 2011. Having been informed of the issues between the parents, I strongly urged them to have discussions with a view to reaching one of a number of fairly obvious solutions for their own benefit and that of their children.

Persistent failure to reach agreement has generated an absurd level of legal costs. I directed the parties to provide schedules of expenditure to date. The wife's costs now amount to £425,000, of which £114,000 remains unpaid. The husband's costs amount to £500,000, of which £63,000 remains unpaid. The overall bill to the family, now standing at £925,000, will no doubt top £1 million if next month’s hearing about the children goes ahead. It should be recalled that this level of expense has been incurred without a basis of jurisdiction having been established, or a page being filed in relation to the ultimate financial orders that will be required.

The case is evidently not proceeding in accordance with the overriding objective that it should be dealt with expeditiously and by saving expense, and it is also being allotted a disproportionate share of the court's resources. I shall direct that at every future hearing of whatever kind each party shall provide the court with an updated schedule of costs of the kind presented at this hearing. It is just possible that continuous reminders of the irreplaceable loss of money that could be better spent will have some effect on the parties' thinking.

Lastly, Part 3 of the Family Procedure Rules 2010 requires the court to consider at every stage in proceedings whether alternative dispute resolution is appropriate. The court is entitled to adjourn proceedings on its own initiative to enable alternative processes to be explored. I would expect that this option will be very much in the mind of judges conducting any future hearings.

I invite the parties to present draft orders resolving the various outstanding issues.