Divall v Divall

On 17^th May 2012, the Petitioner, Brendan Divall (hereafter “the Husband”) issued a divorce petition in the Hertford County Court. The petition pleaded that the court had jurisdiction to hear the case under Article 3(1) of the Council Regulation (EC) No 2201/2003. On 26^th July 2012, he amended the petition to allege that both parties are domiciled in England & Wales.

The Respondent, Yijun Divall (hereafter “the Wife”), filed an Answer on 28^th August 2012. She pleaded that the court did not have jurisdiction as she was not domiciled here. The issue was transferred to the Principal Registry for determination on 7^th March 2013. On 10^th July 2013, it was set down for hearing before a High Court Judge.

Although the Wife filed a divorce petition in the Netherlands on 24^th September 2012, the Husband’s petition here is first in time. In consequence, the Dutch court has stayed the Wife’s petition pending determination by this court as to whether there is jurisdiction in England & Wales.

I have heard oral evidence from both parties and extensive argument from counsel.

This court has jurisdiction to entertain divorce proceedings if (and only if) the court has jurisdiction under the Council Regulation or no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings were begun.

There is no doubt that the Netherlands has jurisdiction pursuant to the Council Regulation as it is accepted that both spouses are habitually resident there. It follows that, for this court to have jurisdiction as well, it is necessary for the Husband to establish that both spouses were domiciled here on the date he issued his petition.

It is agreed that, despite his habitual residence in the Netherlands, the Husband remains domiciled here by virtue of his domicile of origin. He was born in this country and is a British citizen.

The issue concerns the domicile of the Wife. She was born in China and undoubtedly had a Chinese domicile of origin. The Husband alleges that this changed to a domicile of choice in England following her marriage and that she retains this domicile of choice notwithstanding her move to the Netherlands. The Wife argues firmly that she is not domiciled in this jurisdiction.

There are four possible scenarios. It is only the fourth scenario under which the Husband can establish jurisdiction:-

The Husband was born in this country on 9^th October 1966. He is therefore 47 years of age. He lives in the former matrimonial home at Bakhuizen Van Den Brinkhof 43, 1065 BA, Amsterdam, Netherlands. He is a plumber but is also the primary carer for the two children.

The Wife was born in China on 8^th November 1972. She is therefore aged 41. She lives at Theodoor Van Hoytemstraat 49, 1062 CG, Amsterdam, Netherlands. She is a Quality Assurance Analyst for a US company, Compuware.

The parties met in Germany in 1996, when the Wife was there on a short term Chinese business visa. On its expiry, she returned to China but a relationship blossomed with the Husband and they decided to marry. She entered the UK on 21^st February 1998 on a tourist visa. The parties married in Grantham on 28^th February 1998. The Wife returned to China in March 1998.

It seems clear that, thereafter, they hoped to live as a married couple in Amsterdam. The Dutch way of life attracted both of them. The Husband was not happy here. Indeed, he had been living abroad for four years when he met the Wife. In November 1998, he obtained employment in Amsterdam. Unfortunately, however, the Wife could not get the relevant visa to join him.

By March 1999, the parties had been forced to reassess the position. They decided to commence their married life together in this country. I am satisfied that, initially, it was with the intention of obtaining residency rights for the Wife here so that the couple could then live and work in Europe, probably in the Netherlands.

The Wife therefore obtained a spousal visa entitling her to move here in May 1999. In June 1999, she obtained employment here. In April 2000, she obtained UK residency. On 12^th August 2002, she became a British citizen and got a British passport. To do so, she was forced by the Chinese Government to relinquish her Chinese nationality. Since then, she has always travelled to China on her British passport. Moreover, she has no right to enter China and has to obtain a visa each time to do so.

From 12^th August 2002, the couple were free to leave England and move to any other European Union country. They did not do so. I am not entirely clear why they did not. It is right that the Wife’s mother became very ill and subsequently died, causing her much distress. The Wife had a number of jobs here, including jobs in London and Reading. The parties subsequently purchased a matrimonial home in joint names in High Wycombe and a buy to let property in Grantham.

On 16^th February 2005, their first child, Sophia Meijuan Carole Divall was born. She is now coming up to 9 years of age. Two years later, on 19^th May 2007, their second child, Anna Yenwran Nicole Divall was born. She is now 6 years old.

It appears that from time to time, the parties discussed reactivating their plan to move to the Netherlands. In 2006, the Wife made some enquiries with an acquaintance about schooling in Holland. It is clear that both the Husband and the Wife thought the Netherlands would be a better place to bring up and educate their children than here. They also thought their standard of living there would be higher, in part as a result of tax relief available for up to ten years for people in their position.

In March 2008, the family emigrated to the Netherlands. The Wife had obtained a job with TomTom, who paid the costs of shipping all their belongings to Amsterdam. They tried to sell the house in High Wycombe but could not do so due to the economic crisis. They therefore decided to rent it out as they were already doing with the property in Grantham.

They rented a property in Amsterdam and, in due course, both daughters were enrolled in schools there. The children currently attend a Montessori School in Amsterdam. They are both entirely fluent in Dutch.

It is clear that the Wife in particular did not find the first six months in Amsterdam easy. She knuckled down, however, and there was no question of the family returning here. She gradually began to enjoy the life in Holland, particularly when she started with her current employers. In April 2011, the parties purchased the house at Bakhuizen Van Den Brinkhof. I am satisfied that they had outgrown their previous flat. Moreover, tax relief on mortgages remains available in Holland and meant that they could purchase a much larger property and pay slightly less than their previous rent.

Regrettably, the marriage got into difficulty in 2011. The Wife commenced a relationship with a Dutchman. She rented a flat in Amsterdam in November 2011 and moved out of the matrimonial home to live in it in January 2012. She says, and I have no reason to doubt, that her relationship with her Dutch boyfriend is very serious and she has been welcomed into his family.

The Wife did initially do a short beginners course in Dutch but she did not persist with her studies as, she told me, nearly everyone in Holland can speak English. More recently, she is making an effort to learn the language, in part as a result of her relationship with her Dutch boyfriend, although they speak English to each other. She says that she intends, in due course, to obtain Dutch nationality.

There is no dispute between counsel as to the law that applies in relation to the issue of domicile.

The overall burden of proof lies on the Husband to satisfy me that I have jurisdiction to entertain his petition. However, in respect of each issue, the burden lies on the party who asserts that a previously admitted or established domicile has changed.

The common law concept of domicile is notoriously elusive. There are several relevant English principles of domicile as derived from Dicey, which are helpfully summarised in paragraph 8 of the judgment of Arden LJ in Barlow Clowes v Henwood [2008] EWCA Civ 577 (“Henwood”):

“(i)

A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to 126).

No person can be without a domicile (Dicey, page 126).

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:

Domiciles of origin are notoriously adhesive. Clear evidence of a 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.

Acquisition of a domicile of choice is contingent upon a combination of residence and intention of permanent or indefinite residence. Two recent decisions of the Court of Appeal stress the adhesive nature of the domicile of origin and the height at which the evidential bar is set for a person seeking to assert that a domicile of choice has been acquired over a domicile of origin (Aguilan v Cyganik [2006] EWCA Civ 129 and the Henwood case referred to above).

In Henwood, Arden LJ said:

“13.

At 458 [of Udny v Udny (1869) LR 1 SC & D 441], Lord Westbury made the following observations about the acquisition of a domicile of choice which also emphasise the fixed nature of the requisite intention:

"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established."

14.

Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days. Thus, in Bell v Kennedy (1868) LR 1 Sc and Div 307, 311, Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term "domicile", held that the question to be considered was in substance whether the appellant:

"had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?"

15.

In my judgment this test by its reference to ending one's days usefully emphasises the need for the subject to have a fixed purpose that he will live in the country of his domicile of choice.”

A person who determines to spend the rest of his life in a country clearly has the necessary intention. A person can acquire a domicile of choice in a country without naturalisation and conversely a person does not necessarily acquire a domicile of choice in a country, which has granted him naturalisation (Henwood at para 18 citing Wahl [1932] 147 LT 382).

Whether or not a domicile of choice had been acquired at or by a particular date requires a retrospective examination of the evidence. See Henwood at paragraph 16:-

“16.

A finding as to domicile requires a careful evaluation of all the facts. This point is illustrated by a memorable passage from the judgment of Mummery LJ in Agulian v Cyganik [2006] EWCA Civ 129 at [46(1)]:

"Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that "Life must be lived forwards, but can only be understood backwards" resonates in the biographical data of domicile disputes."

Statements by a party about their intentions will be treated cautiously, even in cases, such as here, where the witness is undoubtedly being truthful. “The Court should not rely on these statements unless corroborated by action consistent with the declaration” [Henwood at paragraph 19 citing Dicey at what is now 6-051].

The test for abandonment of a domicile of choice is much less stringent than the test for acquiring one. A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise. When a domicile of choice is abandoned, a new domicile of choice is acquired or the domicile of origin revives (see Dicey Rule 13).

A domicile of choice is thus lost only if both the residence and the intention to reside are given up. However it is not necessary to prove a positive intention not to return: it is sufficient to prove merely the absence of an intention to continue to reside (Qureshi v Qureshi [1973] 1 All ER 325).

In order to show that the intention has been given up, it may be desirable to prove the formation of an intention to reside in another country, but such proof is not essential as a matter of law (Dicey 6-075).

My attention was also drawn by Miss Faggionato, for the Husband, to two further authorities, namely Irvin v Irvin [2001] 1 FLR 178 and Re Furse (deceased) [1980] 3 All ER 838. Whilst Irvin is a case that does lend support to the contention that the Wife abandoned her domicile of origin and acquired a domicile of choice in this country, I do not consider that it supports the Husband’s case that she has retained that domicile of choice. All these cases turn on their own facts. In Irvin, the Husband was found to have a resolve to return to this country to retire, as evidenced in part by his acquisition of a property in Brighton and his plan to return to a business consultancy there on retirement. The Wife in this case has no such intention.

As for the case of Furse, it reinforces the need for caution when an individual is in a country for a time limited and specific purpose. Moving to England to bring up your children is not of itself sufficient to result in the acquisition of a domicile of choice here. On the facts, however, Furse supports the Wife’s contentions as it was held that the testator had acquired a domicile of choice in England because he intended to continue to live here on a farm so long as he was able to lead an active life. His intention to return to the United States if he could not do so was only on a vague and indefinite contingency. It was therefore insufficient to lead to a finding that he had retained his domicile of origin.

I have come to the clear conclusion that this court does not have jurisdiction to entertain this divorce petition. I have reached this conclusion because I am quite satisfied that, even if the Wife obtained a domicile of choice here following her marriage, she had not retained it at the date of the Husband’s divorce petition.

It is less clear whether or not she ever obtained a domicile of choice in this jurisdiction and, if she did, whether her domicile reverted to her domicile of origin or became a domicile of choice following her move to the Netherlands. Fortunately, I do not need to determine these issues to conclude, as I do, that she does not have a domicile in this jurisdiction.

The reasons for this can be easily stated. The ninth principle set out by Arden LJ in Henwood applies:-

“A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely and not otherwise”.

One of the reasons why I am uncertain as to whether the Wife ever established a domicile of choice here is my concern that she never intended to reside here permanently. There is no doubt at all that, in 2008, she ceased to reside here. It is equally quite impossible to say that she retained any intention to reside here permanently or indefinitely in May 2012 when the Husband commenced his divorce proceedings. She had by then undoubtedly ceased to intend to do so, even if she ever did so intend in the first place.

It is right, of course, that she is a British citizen. She has an interest in properties here and she has bank accounts here. The agreed evidence, however, is that she only lived here because she could not get the required visa to live in Holland in 1998. Even though her Husband was British, he did not like this country and had not been residing here for six years when they married. He only returned here because he could not be with her in Holland.

This main reason why she applied to become a British citizen was so she could reside not here but in Europe and, in all probability, in Holland. It is something of a mystery why the parties did not emigrate shortly after she obtained her citizenship in 2002 although I accept that her mother became very ill and she then became pregnant with Sophia.

Nevertheless, in 2008, the family left this country. They did not leave on a trial basis, albeit that, if the move had been a disaster, they might have returned, particularly if the children were unhappy. The Wife told me, and I accept, that it was intended to be a permanent move, although as she quite properly said “you can never say never.” Despite her initial discontent, the Wife stayed in the Netherlands and did not seek a return here. She worked through her unhappiness and became thoroughly settled in Holland, even before the breakdown of the marriage.

I reject the suggestion made by the Husband that the family intended to review the situation after ten years, when the expatriate tax relief expired. The family had moved to Holland in the first place in significant part for the children’s education. It would make no sense to uproot them at 13 and 11, midway through their education and after they had lived the vast majority of their lives in the Netherlands.

I have come to the clear conclusion that, by the time the marriage broke down, the Wife had no intention of ever returning to England. The fact that her marriage to an Englishman then broke down makes the matter overwhelming. As she told me in evidence, she had absolutely no reason to return here in May 2012. She had a job in Holland. She had formed a relationship with a Dutchman, who has no connection to this country. She would not have been returning here with the Husband. Her children were in Holland. They had become fluent in Dutch and they were completely immersed in the Dutch education system. She told me that “I intend to spend the rest of my life in the Netherlands.” She added that she intends to acquire Dutch nationality in due course. Circumstances do, of course, change but I accept that this is her definite intention and it was her definite intention on the day the divorce petition was issued. It is fatal to the claim for domicile here.

The fact that the Wife had not, at that point, made any significant commitment to the Dutch language might have been relevant if there was evidence that she had not done so because she intended to return here. In fact, the reason appears to be simply that she did not need to do so. Now that there is a need, as a result of her Dutch boyfriend and his family, she is beginning to learn.

Miss Faggionato makes much of the Statement of Arrangements saying that the Dutch arrangements are unlikely to change “although we may return to England.” She then draws my attention to the Wife’s response that she agrees the arrangements “although I hope contact will develop over time.” I do not read into that any acceptance that the children may or should return to England. The Wife told me, and I accept, that she is thoroughly opposed to any such move. She was unable to say whether or not she would return here if the Husband was granted permission to bring the children here. She said she would have to think very carefully about it before deciding. I consider that was a perfectly reasonable response. I do not accept that the possibility that the Wife might have to return here if her Husband got permission to bring the children back here is sufficient to satisfy me that she has any “intention to reside here permanently or indefinitely.”

As Miss Cade Davies for the Wife rightly submits, domicile of choice is not nearly so adhesive as domicile of origin. The Wife has satisfied me completely that she had no intention on the date of issue of the petition of returning to reside here either permanently or indefinitely.

I accept, of course, that the Wife did have a domicile on the day the Husband issued his divorce proceedings. It was not England and Wales. It was either China or the Netherlands. If I had to do so, given my finding as to the Wife’s intention to spend the rest of her life in the Netherlands, I would find that she now has a domicile of choice there. In this regard, it is relevant that she has given up her Chinese nationality and cannot return to that country without permission.

I decline to find if she ever acquired a domicile of choice in England and Wales. It is quite unnecessary for me to do so and is not an easy issue to resolve.

I have to end by saying that I am entirely unclear as to why this issue was litigated, at, no doubt, considerable expense. In an email dated 11^th May 2012 sent by the Husband to the Wife, he said that “Regarding the UK (assets), I think we should keep that out of the Dutch courts, for a number of reasons…” He clearly therefore anticipated the Dutch courts dealing with the divorce at that point.

The children are undoubtedly habitually resident in Holland, so the Dutch court has exclusive jurisdiction in relation to them. I was told during submissions that the Wife’s Dutch petition indicates that English law is to apply to the Dutch financial remedy proceedings. I do not, of course, know whether that is correct but the principle of equal division of the assets appears to have been conceded long ago. It follows that I am not sure what juridical advantage to the Husband there would have been in litigating here.

After conclusion of the oral judgment, I was told that the Dutch court will not deal with the English assets. This is not a reason for these proceedings either. The Husband could have written to the Wife and asked her to agree that, if this proved to be the case, she would consent to that aspect proceeding here pursuant to Part III of the 1984 Act (ie financial remedy proceedings after an overseas divorce). He did not do so, nor as far as I am aware, did he ever say that the inability of the Dutch court to deal with English assets was his reason for applying here for divorce.

This does therefore seem to have been a particularly pointless dispute. I do accept that it is improper to litigate in a convenient location if there is no jurisdiction to do so but that is not the case here. It has always been accepted that the Dutch court does have jurisdiction based on habitual resident. It may be that this lack of obvious justification for these proceedings will go to the issue of costs.