This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR. JUSTICE COBB
Between :
U | Petitioner |
- and - | |
J | Respondent |
J v U; U v J (No.2) (Domicile)
Charles Hale QC & Jonathan Rustin (instructed by Anthony Gold & Co) for U, the Petitioner Wife
Timothy Scott QC & William Tyzack (instructed by Stewarts Law LLP) for J, the Respondent Husband
Hearing dates: 20, 22 and 23 February 2017
Judgment
The Honourable Mr. Justice Cobb :
By divorce petition dated 28 July 2015, the Petitioner seeks a dissolution of her marriage from the Respondent; she asserts that the marriage has irretrievably broken down and in this regard she relies on the Respondent’s unreasonable behaviour (section 1(2)(b) Matrimonial Causes Act 1973). Her petition contains the following contentions, crucial to establishing the jurisdiction of the English Court to grant this relief, and any other relief ancillary to the divorce:
That the Petitioner and Respondent are habitually resident in England and Wales;
That the Petitioner is domiciled in England (the requirement being that “either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun”: section 5(2) Domicile and Matrimonial Proceedings Act 1973: ‘DMPA 1973’).
She further asserts that England would be the forum conveniens for the determination of the divorce and ancillary matters.
The Respondent accepts that the marriage has broken down. He has however filed an Answer to the Petition, contesting jurisdiction, specifically asserting that neither he nor the Petitioner are habitually resident in England and Wales, and that the Petitioner is not domiciled here either. He has applied to strike out the petition.
The Petitioner’s case based on habitual residence was abandoned before I started hearing the issues. Indeed, in determining a prior application issued by the Petitioner under the Children Act 1989 in September 2016 (which I refer to again below – see [10] and [32]) Bodey J recorded that the Petitioner also abandoned her contention that the parties were habitually resident in this jurisdiction; that application was rejected further on separate grounds (see J v U [2016] EWHC 2481 (Fam)).
The Respondent disputes that the Petitioner is domiciled here.
At an earlier stage of these proceedings, and notwithstanding that it had not been specifically pleaded by the Petitioner that the Respondent is domiciled in England, the Respondent’s own domicile was brought into focus. He denies that he himself is, or was ever, domiciled in this jurisdiction. It was agreed by all parties at the outset of this hearing that I should nonetheless consider the domicile of both parties, and if I was to conclude that the Respondent is domiciled in this country, I would be likely to give leave to the Petitioner to amend her petition.
The task of establishing the domicile of these parties, on these particularly unusual and complex facts, is, I suspect, about as difficult a forensic exercise as one might encounter in a case of this kind.
The Respondent contends that England is not the forum conveniens of the matrimonial dispute; he has applied for a stay under para.9 of schedule 1 to the DMPA 1973 and/or at common law. In September 2015, the Respondent issued divorce proceedings in the Municipality Court in Sarajevo, Bosnia, where all the family then lived. Those proceedings were dismissed by that court on the basis that the Petitioner was able then to assert diplomatic immunity in relation to the suit. This immunity is no longer available to her (she has moved to live in Serbia, albeit that the Respondent and children remain in Bosnia), and the Respondent has filed a fresh petition in Sarajevo (3 November 2016), which awaits judicial consideration. The Petitioner has answered that petition, taking issue with the Bosnian Court’s jurisdiction to deal with the claim. Nonetheless, on 29 November 2016, the Petitioner issued her own application in the Municipal Court of Sarajevo seeking a determination of child arrangements for the two children. The Respondent maintains that the courts of Sarajevo offer a more appropriate forum.
The issues at this hearing have been focused on:
Whether the Petitioner, whose domicile of origin is Ireland, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
Whether the Respondent, whose domicile of origin is India, acquired a domicile of choice in England, and if so, whether that domicile of choice subsists?
If either party has domicile here, whether it has been demonstrated that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action (forum non conveniens).
In assisting me to reach a decision I have read the statements of evidence of the parties, heard their oral evidence, considered and analysed a number of documents submitted by each, and received persuasive and able submissions – both written and oral – from counsel.
The law on domicile
The law on domicile is summarised distinctively and concisely in Dicey & Morris (15th edition) (“Dicey”), and has been widely discussed in a number of relevant and recent authorities (the numbers in brackets in the paragraphs which follow correspond with the text of Dicey). From these sources, I divine the following principles which are relevant to the current dispute and which I apply to these facts:
No person can be without a domicile (Dicey Rule 5); no person can at the same time and for the same purpose have more than one domicile (Dicey Rule 6);
A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home (Dicey 6R-001);
Every person receives at birth a domicile of origin (Dicey & Morris Rule 9); this remains “of great importance” (Dicey 6-026), and is said to be “more tenacious” (6-031) than other forms of domicile; “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” (6-031);
Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise (Dicey & Morris 6R-033); residence requires something more than casually passing through a country; it connotes becoming an “inhabitant” of the country (6-034);
Residence for a short period of time, even a few days, may be sufficient to establish domicile of choice (6-036); the length of residence is not important in itself;
An intention to reside permanently, or for an unlimited time, in the given country must exist (6-039), the animus manendi; naturalisation is an indicator of intent (6-041). In Udny v Udny (1869) LR 1 Sc & D 441, it was said (Lord Westbury) that:
"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." (emphasis by underlining added)
In Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 at [14], Arden LJ observed:
“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”. (emphasis by underlining added)
In considering a person’s domicile, the court is expected to consider carefully the available evidence; there are many factors which may indicate an intention, indeed, “there is no act, no circumstance in a man’s life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile. A trivial act might possibly be of more weight with regards to determining this question than an act which was of more importance to a man in his lifetime.” (Drevon v Drevon (1864) 34 L.J. Ch 129 at 133 (Dicey 6-048); some facts which have great significance in one case may be of little consequence in another;
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 (Dicey Rule 13);
Domicile of choice is lost by ceasing to reside in a particular place and ceasing to intend to reside there permanently or indefinitely; where a domicile of choice is abandoned, either a new domicile of choice is acquired, or the domicile of origin revives (Dicey 6R-074); where a person abandons a domicile of choice, and does not acquire another, the domicile of origin reverts;
A domicile of dependency arises for a person who is legally dependent on another; that person takes on the domicile of the person on whom he is dependent (6R-078); a person under the age of 16 is legally dependent and cannot acquire an independent domicile; this issue potentially arises on the facts of this case given that the Respondent’s father became a naturalised British Citizen while the Respondent was 15 years old; the question arises as to whether the fact of the naturalisation (in the context of the whole) was sufficient to indicate that the Respondent’s father had acquired a domicile of choice in 1960 in England; naturalisation or citizenship is not decisive (see Barlow Clowes at [18]);
The burden of proving a change of domicile lies on those who assert it (Winans v Att-Gen [1904] A.C. 287); as Arden LJ observed in Barlow Clowes (quoting from Lord Macnaghten in Winans) at [90]/[91]:
[90] “…the courts should not too readily find that a person has lost his domicile of origin because a change of domicile affects a person's status. At 294, Lord Macnaghten quoted with approval observations of Lord Cranworth and Lord Wensleydale in Whicker v Hume (1858) 10 HLC 124 to the effect that "in these days, when the tendency of the educated and leisured classes is to become cosmopolitan - if I may use the word - you must look very narrowly into the nature of the residence suggested as a domicil of choice before you deprive a private man of his native domicil."
[91] “It is difficult with respect to see why this reason does not equally apply to loss of a domicile of choice. In an increasingly cosmopolitan world, where migration is not confined to higher socio-economic groups and travel and communication is much easier, it is likely that many people will be as attached to a domicile of choice they have acquired as to a domicile of origin which they enjoyed originally. The law should reflect that fact.”
In this case, the burden is on the Petitioner to demonstrate that she and/or the Respondent have lost their domicile of origin; the standard of proof is the ordinary civil standard, but – per Scarman J (as he then was) in In the Estate of Fuld (No.3) [1968] P. 675, 685-686:
“two things are clear-first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists; and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.”
Cogent and clear evidence is needed to show that the balance of probabilities has been tipped, and this is true whether the issue is the acquisition or loss of a domicile of choice (see also Irvin v Irvin [2001] 1 F.L.R. 178; [2001] Fam. Law 15).
The statements of the person claiming or disputing a change of domicile must be treated with caution, unless corroborated by action consistent with the declaration. The person whose domicile is in question may himself testify as to his intention, but the court will view the evidence of an interested party with suspicion. The weight of such evidence will vary from case to case (Dicey 6-051).
The essential background facts
Bodey J summarised the background history of these parties in brief at [3]-[7] of the earlier judgment ([2016] EWHC 2481 (Fam)). It is necessary for determination of the issues before me, to undertake a more profound review and analysis of their histories.
The Respondent is 72 years old. He is a British Citizen. He was born in Mumbai, India, to Indian parents. For the first 13 years of his life he was raised in Mumbai and educated in a Jesuit school there. In or about 1957, when he was 13 or 14, his family moved to London, principally because his own father considered that educational opportunities for his five children would be superior in the U.K. His father liquidated all his assets in India. In 1960, when the Respondent was still only 15 years old, his father became a naturalised British citizen.
Having left school at 16, the Respondent undertook part-time night-work whilst continuing his studies. These activities in turn propelled him towards university and an undergraduate degree which he completed at Brunel University in combined honours, with a socio-economic bias. When he was still only 22 he married an English woman and they bought a property in Richmond Surrey. Having pursued further academic studies (postgraduate research), the Respondent joined the UK civil service in 1972, then aged 28. He remained in the civil service continuously for 23 years; it is said that he was employed in the civil service for altogether 33 years. A daughter was born to the Respondent and his first wife; she is now aged 42, is married with a child, and currently lives in India where she is involved in a sustainability project.
In 1978, the Respondent purchased a six-bedroomed house in Fulham (“the Fulham property”), which he still owns in his sole name, but which is, and has been for many years, in various permutations, largely let to tenants.
The Respondent’s first marriage came to an end after 10 or 11 years, and he then formed a relationship with a French woman (“Ms. B”) with whom he had a son, now aged 28. He never married Ms. B, but purchased a property with her in Hammersmith. In 1995 the Respondent briefly left the civil service (although the continuity of his employment remained) and became an administrator at the European Parliament in Luxembourg. He, together with Ms. B and their son, moved to live in Luxembourg. The Respondent maintains that he has not lived in England since this time. In 1997 the Respondent moved from Luxembourg to Brussels where he was offered work with the European Commission. He purchased a property in the outskirts of Brussels, but his relationship with Ms. B foundered, and it was while he was there (the date is not agreed, either 1997, according to the Petitioner or 1999 or 2000, according to him) that he met and formed a relationship with the Petitioner. The early days of their relationship were spent in Brussels. In October 2001, the Respondent’s contract with the European Commission came to an end.
In early 2002 the Respondent was assigned to work in the Cabinet Office in London in a senior policy role; he moved back to London, and the Petitioner lived with him (cross-refer to [19] below). During this period when the parties were living and working in London (late-2001 through to late-2002), they occupied a room or rooms at the Fulham property, with their own bathroom (I so find) but sharing the kitchen and some of the common parts with tenants. The Respondent’s assignment in London was reasonably short-lived; from 2003 to 2005 he spent extended periods with the Petitioner (with whom he was now in a committed relationship) in Tirana, Albania, where she had been posted (see [19] again below); he obtained part-time work there for a French development programme, and this converted to full-time work in 2005. When not in Tirana, he was (according to the Petitioner, though this is disputed), in London, where, in this period, the Petitioner said that she not infrequently paid him visits.
I pause here in the review of the Respondent’s life, and pick up his history again at [21] below at the point of the parties’ marriage. However, it is relevant to note before turning to consider the Petitioner’s early history that when the Respondent was in his late twenties, he and his first wife purchased an old farmhouse property with 9 acres (now planted with olive trees) in Tuscany, Italy (“the Italian farmhouse”), with friends. He still owns this property, but now outright, having bought out his initial co-owners. The Respondent describes this as his ‘spiritual home’, though elsewhere accepts that the property is only used for frequent “annual holidays” (my emphasis by underlining).
The Petitioner is 44 years old. She has dual-nationality: British and Irish. She was born in England to Irish parents; her father, a doctor, had been on secondment in the north of England at the time of her birth. She moved to Ireland with her family when she was 7 months old, and remained there through her schooling up to and including her undergraduate education (her degree was in art, history and Spanish). During her undergraduate studies, she benefited from the Erasmus scheme (European Community Action Scheme for the Mobility of University Students), undertaking part of her degree course in Madrid and part in Urbino, Italy (where, in each location, she also obtained part-time work). In 1995, when she was 23, she moved to Manchester to embark on a Master’s degree in Museum Studies; her 120-page thesis for her Master’s was on the subject of English Country Houses, specifically Calke Abbey (Derbyshire) and Brodsworth Hall (Yorkshire). In the same year (1995), she applied for and obtained a British passport. She speaks several languages.
The Petitioner lived in England during her Master’s programme for approximately 18 months between October 1995 and March 1997. She accepts that this was the longest continuous period she has ever lived in England.
Having completed her education (1997), the Petitioner undertook an internship in Brussels, where she then obtained full-time work, until October 2001. After a holiday to India with the Respondent, she moved back to England at the end of 2001, to take up work for a company based in South West London on a time-limited contract. During the next eleven months, she shared the Fulham property with the Respondent. In October 2002, she and the Respondent made a trip to Ireland to collect all of the Petitioner’s personal items which were still stored at her parents’ home. She relocated them all to the Fulham property: mahogany mirrors, mahogany furniture and a bust, together with other items which she boxed and then stored in the cellar there. In November 2002, the Petitioner moved to Tirana, Albania, to take up a one-year renewable post as a “Junior Expert in Delegation” for the Delegation of the European Union; the Respondent followed her, taking up part-time work (and then full-time work) in Albania. In order to qualify for her posting, the Petitioner applied to the Home Office in London for a police security check; she did not make a similar application from the authorities in Ireland. I have seen some correspondence which was generated at that time in relation to her employment which was addressed to the Petitioner in Ireland; however, the Petitioner’s “place of origin” recorded on her terms and conditions document was shown as ‘London’ inscribed in manuscript in place of ‘Galway’ (it is difficult to see when the change was made). The preponderance of the correspondence to the Petitioner from this period (and wholly thereafter indeed) appears to have been sent to the Fulham property. During this period, the Petitioner applied for work in London but was unsuccessful; the Respondent disputes this fact, but I accept the Petitioner’s account, though it is inconsequential to my determination.
In April 2005, the Petitioner was granted diplomatic status, reflecting finally her formal engagement as a contract staff member of the EU Delegation; this privilege was afforded to her in accordance with the United Nations Convention, and benefited her family. This diplomatic status endures to the present day. In approving this change of status, the Petitioner’s permanent address was recorded as London, and her address that of the Fulham property. The address of the Fulham property was further used by her employer to (a) determine her fiscal country of origin (b) her pension calculations, and (c) her flight entitlements. This endures to the present; indeed, in a recent witness statement filed on the Petitioner’s behalf from the Head of Administration at the European Union, it is confirmed that the Petitioner’s current package includes the provision of annual flight tickets for herself and her family “to their permanent place of residence i.e. London, England” (emphasis added).
The parties married in August 2005 in Italy; it was by both accounts a sumptuous wedding celebration with friends, at a local thirteenth century church with a reception at the Italian farmhouse. The Petitioner’s parents were not invited; the Petitioner had not spoken to them at that point for 2 years, following a family disagreement. The Petitioner’s siblings were not invited. The Petitioner’s family was not supportive of the marriage.
Three days prior to the wedding, the parties signed a pre-nuptial agreement; it is agreed that the contract was put forward by the Respondent. It describes both parties as “British subjects”; it also refers to them both as “farmers”. It contains the following statements:
“[The Respondent] and [the Petitioner] wish to declare that the matrimonial regime which will govern their patrimonial regime is the separation of goods according to the Common Law rules of English Law and according to the rules on separation of goods set out in art.215 of the Italian Civil Code.
[The Respondent] and [the Petitioner] wish further to declare that they are habitually resident and domiciled in Italy… and that the law governing their prenuptial agreement is Italian law, insofar as it is compatible with the lex loci where their immovable assets are located.
[The Respondent] and [the Petitioner] further wish to declare that they have received legal advice independent of each other concerning the laws relating to the powers of the court of England and Wales and in Italy where they are habitually resident and domiciled upon judicial separation, divorce and nullity and in relation to the purpose, provisions and effect of this Agreement…
The Patrimonial Regime of the Parties
The Patrimonial regime of [the Respondent] and [the Petitioner] during their marriage will be the separation of goods according to the rules set out in art.215 of the Italian Civil Code, the law of the parties habitual residence and domicile which is the common law rules in England and Wales (sic.)
Jurisdiction
[The Respondent] and [The Petitioner] each agree that the interpretation, implementation, and enforcement of this Agreement shall be determined exclusively in accordance with the principles of Italian Civil Law and the competent court will be the court of [the Petitioner’s] prenuptial domicile in Italy.”
I was advised that the pre-nuptial agreement was drawn up by a dual-qualified Italian/English advocate; its principal terms are confusing, as may be sufficiently apparent from the extracts cited above. It is notable however that in spite of the fact that both parties signed the document signalling their apparent acceptance with the contents:
Neither party was, by principal occupation, a “farmer” at the time of the marriage (the most generous interpretation of this curious description of their principal occupation is that there was an olive grove at the Italian farmhouse);
Neither party now claims (or has ever claimed, I believe) to have been habitually resident in Italy at the time of the marriage; there is no evidence that they were;
Neither party now claims (or has ever claimed, I believe) to have been domiciled in Italy at the time of the marriage; there is no evidence that they were;
The Petitioner claims that she did not receive independent legal advice before signing the document;
There is no evidence that the pre-nuptial agreement was witnessed, for which there was specific provision, if not requirement.
That the document was drawn up and signed by these parties demonstrates a rather casual regard displayed by both of them to the concept of their national status, and the requirements of formal proved documents; this has inevitably affected my analysis of their other evidence on the central issues, encouraging me to proceed with caution.
In the summer of 2006, the parties’ first child was born. She was born at Queen Charlotte’s Hospital in Hammersmith. The Petitioner had spent days (or possibly weeks) in London, living at the Fulham property, prior to the birth; following the birth, she and baby spent some further time there. There is a dispute about how long post-natally they were in Fulham, but in my view it was certainly measured in weeks. They then travelled to Italy where they spent the majority of the Petitioner’s maternity leave, before the Petitioner moved back to Albania.
In October 2006, the Respondent moved to live in Sarajevo, Bosnia-Herzegovina (“Bosnia”) having taken up a new position with the European Commission. Within her general disclosure in these proceedings, the Petitioner revealed a letter from the Respondent’s solicitor which had been prepared at about that time (17 October 2006) which reads as follows:
“Re: [The Respondent]
We can confirm that [the Fulham property: address given] has been the joint permanent residence of [the Petitioner] prior to November 2005. [The Respondent] is married to [the Petitioner].”
The Respondent maintained that he had never seen the letter before. Mr. Scott QC observed that the language of the letter was strange, and the purpose of the letter was unclear. Read on its own, I rather agree. The author of the letter has sent a recent (December 2016) explanatory note, by e-mail, to the Petitioner in which he said:
“I anticipate that this letter was written at the telephone request of [the Respondent] me having met you and having had confirmation in the meeting from you both that you were resident at that address for the purpose of the letter … I think it is unlikely that you would have sent me separate emails concerning this issue” (emphasis by underlining added).
The explanation sheds little light on the content of the letter, and leaves further room for doubt about how or why this letter was generated. Having heard argument on the point, it seemed to me – and I so find – that the letter was most likely explained by the fact that at about the same time, the European Commission had written to the Petitioner confirming, in response to her specific request, that her “lieu d’origine” had been rectified (with effect from 16 November 2005) to show the address of the Fulham property. I am also satisfied on balance that it was the Respondent who was the client of the solicitors’ firm, and he must therefore have had some knowledge of, or hand in, requesting the letter in the first place.
As earlier mentioned, after the birth of the parties’ first child, the Petitioner returned to Tirana, and for about three years (2006-2009), the parties conducted a long-distance marriage between Tirana (Petitioner) and Sarajevo (Respondent). In 2008, their second child was born, in Italy. In 2009, the couple were reunited under the same roof when the Petitioner was posted to the EU Delegation in Sarajevo, and the family were able to live together there for the first time, which they did until autumn 2016. Indeed, the Respondent and two children continue to live in Sarajevo, albeit in a different apartment.
In 2009, on his 65th birthday, the Respondent retired from the European Commission.
In 2011, the Fulham property was extensively renovated and refurbished; the works took approximately 2 years, and were costly. Photographs of the property now reveal a modern and well-appointed interior. In 2011, the Respondent executed his last will; although proclaiming himself (incorrectly) as resident at an address in India at the time, he nonetheless provided for English law to determine all issues of succession. In 2013, he signed a letter of wishes making it clear beyond doubt that he intended to exclude the Petitioner from benefitting directly from his estate (I return to this below [66](iv) below).
The Petitioner has been registered on the UK electoral roll in the period 2003-2005, and with Hammersmith and Fulham Council as an overseas British voter in more recent years. In 2016 she applied for a postal vote in order to vote in the EU referendum, to which she points as evidence of her interest in the UK’s future role in Europe.
In November 2014, the parties attended marriage counselling together in London; the Respondent observes that the counsellor was Irish, but does not say that she was chosen for her nationality.
The marriage broke down in 2015. On 28 July 2015, the Petitioner issued her petition for divorce in the Central Family Court, London. This was served on the Respondent while he was on vacation in Italy. In September 2015 the Respondent issued an “all-issues” application in the Municipal Court of Sarajevo, relating to divorce, finances, and the children, and filed an Answer to the Petitioner’s petition disputing jurisdiction. On 21 December 2015 the Respondent applied here for the dismissal of the Petitioner’s petition for want of jurisdiction, and/or for a stay of the Petitioner’s petition. In March 2016, the Petitioner filed her response to the Bosnian application, defending it on the basis of diplomatic immunity and/or the existence of the prior English proceedings. On 2 August 2016, the Respondent applied in Sarajevo for an injunction prohibiting the Petitioner from removing the children from Bosnia.
On 30 September 2016 the Bosnian court dismissed the Respondent’s divorce petition, upholding the Petitioner’s defence of diplomatic immunity, and dismissed also his application for an injunction. In fact, on the very next day, the Petitioner left Bosnia to take up a six-year posting to Belgrade (the Respondent instructed his Belgian lawyers to write to the EU Delegation to persuade them to defer the Petitioner’s move, without success). Meanwhile, directions for trial on the petition were given by the English court, and in July 2016 the Petitioner applied under the Children Act 1989 for permission to relocate with the children from Sarajevo (Bosnia) to Belgrade (Serbia). As earlier indicated, Bodey J dismissed the Petitioner’s Children Act 1989 application. On 3 November 2016 the Respondent issued a second petition for divorce in Bosnia; the Petitioner has issued her own application for child arrangements orders in the Sarajevo courts.
Finally, I observe that both children have multi-national profiles, with:
British citizenship, and British passports;
‘Persons of Indian Origin’ cards (procured at the instance of the Respondent – for the entire family);
The ability to converse in several languages.
Neither child has an Irish passport, although they are apparently entitled to them.
Findings of fact
The history above is, save where I have specifically indicated otherwise, uncontentious.
Equally uncontentious is the fact that the Respondent’s domicile of origin was India, and the Petitioner’s domicile of origin was Ireland.
However, certain features of the history of these parties were disputed, both as to fact and intentions, and it is necessary for me to consider further and resolve those disputes in order to reach a reliable view on whether either party has acquired and/or maintained a domicile of choice in England (or elsewhere).
Issues of fact relevant to the Petitioner’s domicile
The Petitioner maintains that from a reasonably early age she was excited by the prospect of living and working abroad – a view stimulated by an international school exchange programme, and her Erasmus experience referred to in [17] above. She has manifestly fulfilled her ambition. Throughout her adult life she has travelled extensively for her work, but there appears to have been, throughout, an anchor laid in London. From as early as 1998or thereabouts she used a London address for all formal or business correspondence while she was working abroad. She does not appear to have used an Irish address for such correspondence from that time. Initially the given address was that of the home of a friend of the Respondent’s in north London (the Respondent claimed not to know this person, but I accept the Petitioner’s account), but from 2000 to date she has used the address of the Fulham property. I have seen a considerable range of correspondence which bears this out.
The Petitioner says that after 2000 she came to regard the Fulham property as her “home”; she asserts that she and her Respondent often discussed a plan for the Fulham property (or a substitute in England) to become their permanent home. One bedroom at the property historically was kept locked and reserved for their use throughout the time they were together (although apparently on a reasonably flexible basis for the use of the tenants’ friends), and the Petitioner had left her personal possessions there which she had retrieved from Ireland (see above). The Respondent told me he saw it differently, letting the property out until recently on a room by room basis; it is now let as a whole. For him it was primarily financial security, and an income-generating asset.
I accept that there were general discussions of the type suggested by the Petitioner, but am not satisfied that there was any agreed firm long-term plan about the use of the property as a home. It was an option. I find that a number of options were discussed, including making it available for their children, should they be studying or working in London. The Respondent makes the further, sound, point, that quite apart from any other consideration, the Fulham property is very heavily mortgaged, and the parties needed, and continue to need, the rental income to service the repayments. The Petitioner describes how in 2010 the parties investigated changing the mortgage into their joint names, but this in fact did not happen given (apparently) the size of the mortgage and the Petitioner’s limited income.
The Petitioner maintains that she invested over the years nearly £80,000 on renovations and maintenance of the Fulham property, and relies on this to support her case that the Fulham property was viewed by her as her ‘home’, and/or that she saw London as her base. The Respondent disputes that the Petitioner has made any payments for the Fulham property (he referred to this as “impossible” in oral evidence); the Petitioner has demonstrated a number of payments, not amounting to the aggregate sum asserted on the evidence filed for this application, but sufficient for me to reject the Respondent’s denial of her having made any contribution. Interestingly the Petitioner maintains that she has spent more than double that sum on the Respondent’s other properties in Brussels and Italy. I accept that the Petitioner made a loan from a jointly-held account to pay back constructors for the renovations. She has asserted that overall she has contributed £300,000 to a number of the Respondent’s properties around Europe (London, Italy, Brussels). I cannot find that this is so – but have not conducted any detailed enquiry into the precise figures.
The Petitioner maintains that when the Fulham property was renovated the basement was designed so that it could be a self-contained flat, with a separate external entrance. The floor plan does not show a kitchen, nor does it convincingly demonstrate that this could be adapted to become a self-contained unit; if there was scope for turning the basement into a self-contained unit, this would require fairly extensive further work. I accept, however, that she was concerned about basement ceiling heights, indicative of an interest in living there herself.
In seeking to establish her domicile here, the Petitioner relies on her payments of income tax in England from 1997 through to 2002. The Respondent attributes this to preferential tax rates in the UK, though I prefer the wife’s account that she saw her fiscal base in the early days as the UK. Given the limited period for which it was paid, some time ago, it matters little to my determination. From 2002 the Petitioner has paid income tax at source through Brussels. However, perhaps more notably, she has paid National Insurance contributions, I believe throughout the period from 2002 (this is clearly documented from 2007-2016); specifically, in 2006 she wrote to her accountant asking to bring herself “up to date with these payments”. She did not make similar provision in Ireland, reflecting – as she maintains and I accept – that it was to England that she saw herself returning to retire.
The Petitioner’s pension for the EU delegation will be paid according to a weighting system which varies according to the EU member state of permanent residence; in the Petitioner’s case she will receive weighting referable to her base in England, not Ireland.
The parties were, as I have said, married in Italy; the Petitioner says that they considered marrying in England in Fulham Town Hall, or in the local catholic church in Fulham, but they decided against it. The Respondent disputes this evidence. I accept the Petitioner’s account, but don’t regard it as carrying much weight in the overall evaluation. I further note that neither party suggested that they should marry in Ireland.
The Respondent has highlighted in this litigation what he maintains are the Petitioner’s enduring and strong connections with Ireland: he points up her capability in advanced Gaelic (language), that until recently she has declared herself to be an Irish national on her curriculum vitae, though she now describes herself as British-Irish; he observed that e-mails have bi-lingual rubric. I am not altogether persuaded by these points; true it is that the Petitioner has Irish heritage, but I do not see this as having the same importance for her now, as it plainly once did. Her relationships with her own family are, or certainly have been, strained; she did not stay with them when she visited with the Respondent in 2002, and they were absent from her wedding, as I have earlier mentioned. She has not lived in Ireland since 1995, and has visited only reasonably infrequently, sometimes to participate in work-related courses or programmes. She has no state pension or equivalent rights in Ireland; she has a dormant Irish bank account with a modest credit. She has had no dealing with the Irish tax authorities. I accept her evidence that she does not read the Irish press. She has, it seems to me, been interested in multi-cultural life, and (rightly or wrongly, but in my view sincerely) she perceives Ireland as not offering this style or opportunity, describing Ireland as “too mono-cultural, too small and too remote”.
The Respondent further points out, fairly in my view, that the Petitioner never appears to have taken a holiday in England; she did not choose to spend time here when she could, but would prefer to be in Europe or further afield. The Respondent further emphasises that even when she was living here briefly in 2002, she was applying for jobs abroad, not in the UK. I accept that these factors point away from the establishment of domicile in England and I weigh them in my consideration (see [63] below).
The Respondent draws attention to the parents’ choice of international forenames (including Irish and Indian) for their children; they do not have classic English names. This is, overall, of minor significance.
The Petitioner’s case is that both parties routinely returned to London for medical treatment, thus evidencing their connections with their domicile of choice. I am satisfied that the Petitioner returned to London for ante-natal and post-natal checks for their first child, and post-natal treatment for the second, and that the first child was born here. Both children have received their vaccinations in London, and other treatments. Both parties are registered with General Practitioners in London, and have been so since 2001. The Petitioner has not been registered with a GP in Ireland for many years. When the Petitioner has required gynaecological and other similar treatment, it is to England that she has returned for this. I have seen correspondence verifying the same. The Respondent counters the Petitioner’s case by asserting that on only a “small number” of occasions has the Petitioner obtained medical treatment here, and that the “vast majority” of treatments have been abroad. Of the medical records available and analysed, it appears that only about 26% of the Petitioner’s medical consultations / treatments have taken place in London, whereas nearly one-half have taken place in Bosnia. The Petitioner maintains, and this is to some extent borne out by the records, that the consultations and procedures in London have been for significant treatment and/or her more serious conditions, whereas she says that her visits to the GP or dentist in Bosnia have been for the more mundane/routine matters. It appears (on what I have seen) that this is so. The Respondent himself observes that hospital standards in Sarajevo were poor, which may of course explain some or all of the above. I am nonetheless satisfied that the Petitioner’s instinct and habit was to return to London for any significant medical treatment.
The Petitioner maintains that since 2001 (at the latest) she has considered herself to be domiciled in England, in spite of her various postings abroad for work. She asserts that London was always the city to which she would return; that she would not return to Dublin or elsewhere in Ireland. She asserts that it is her plan to retire in England.
Issues of fact relevant to the Respondent’s domicile
Mr. Hale QC has argued – although not vigorously – that the Respondent acquired a domicile of dependency from his father by 1960 when the Respondent’s father then became a naturalised British citizen. While this is distinctly possible, I feel unable to make a finding about this without having received wider evidence about the Respondent’s father’s intentions in the relevant period (while the Respondent was a minor), in particular given that the Respondent asserts that his parents retained strong links with their native India. It matters not, argues Mr. Hale, because the Respondent probably acquired a domicile of choice in England once he had become 16.
As to this second contention, the Respondent completed his education in London, he married here (an English woman), and bought property here in the 1970s. He lived in London from 1958 through to 1995, nearly 40 years. The Respondent worked for the British civil service for a number of years (at least from 1972-1995, when he was seconded to the European Parliament, and then back in 2001); he has the benefit of a civil service pension, which he transferred to the European Commission but receives weighting on the basis of his residence in London. He made, on my finding, no return trips to India in this period; I accept the Petitioner’s account that he visited a few times, but only for short visits, and only after 2001. He has no property in India; he had no bank account there, and does not hold an Indian passport.
On his retirement, at the end of his final contract in Bosnia, he arranged for all of his furniture to be sent to his place of origin – which was London.
The Respondent’s older daughter was born in London, was educated in London, and has a British passport; she is said to own properties in London. The Respondent’s only son was born in London, was educated in England (albeit at a French speaking school) and Brussels, undertook his undergraduate degree in a British university, and currently lives (when not travelling for his work) in London.
The Respondent has received medical treatment in various countries. The more invasive treatments and procedures have been conducted in England, and on the NHS. He has had MRI scans, surgical procedures and minor operations in the UK. He has never had any significant medical treatment in Italy, so far as I can tell. Analysis of the Respondent’s medical records demonstrates that over 40% of his own medical consultations in the last ten years have taken place in England. This would tend to show, as it did with the Petitioner, that his habit has been to return to his ‘home’ when any material medical treatment has been required.
The Respondent’s accountant has filed evidence about the Respondent’s tax affairs, not all of which is entirely illuminating. The accountant states, for what it is worth, that he has “always advised [the Respondent] that [he has] retained [his] domicile of origin, being India.” The Respondent has filed tax returns in the UK, disclosing his income from the rent at the Fulham property, since it has been let as a whole following the refurbishment (2013). Overall, the Respondent’s tax position told me nothing.
The Respondent maintains that he was never very happy in England and did not integrate fully into English life; he says that he did not feel himself to be particularly welcome here, and regards himself as a ‘citizen of the world’. I find that his attachment to England was at one time considerably stronger than he now attests; he plainly had a number of friends here, and spoke of personal friendships with a number of English peers. His first wife was English; he had homes and a long and distinguished career here. This commitment to the country was undoubtedly tainted in my judgment by the fact that he experienced racism in the 1960s and 1970s in England. I accept his account of this. He describes being the victim of racial abuse and prejudice. He says that England “was somewhere where I once lived and whose intractable tribulations I had to suffer regardless of how hard I worked, rather than as a welcoming home”; this slightly exaggerated description of his life nonetheless reveals, I accept, at least an underlying ambivalence about England. His unhappy experiences socially were aggravated by a belief that he was discriminated against at work; he launched two claims against the Civil Service based on racial discrimination.
The Respondent refers to his visits to England since 1995 as merely “functional” to maintain the Fulham property or to deal with banking arrangements. I find that the visits were more than that; he lived here from time to time, returned for medical treatment (see [54]), and continued to return here between international postings. He maintains that he has no “familial” links to England (“there is really nothing left for me in England”); even making allowance for the fact that the Respondent often spoke in sweeping generalities (see later [66]), I am not persuaded of his case in this regard. Quite apart from his property, he has brothers living here (although there is currently a family rift), and his parents are both buried here.
The Respondent spoke in general, non-specific, terms about charitable work in India for a hospice foundation. While I have no doubt that this was introduced to demonstrate current closer connections with India, the evidence was not in this respect persuasive.
Discussion and conclusion - domicile
Both of these parties have lived peripatetic lives for much of the last 20 or more years, not untypical of those in the diplomatic service. They have been subject to a number of temporary postings, in the Petitioner’s case on rotation, in countries to which they otherwise have no connection.
I have been invited by counsel to consider a whole range of facts, as is customary in a dispute of this kind (see [9](vii) above), many of which I have traversed above. While “there is no act, no circumstance in a man’s life, however trivial it may be in itself, which ought to be left out of consideration in trying the question whether there was an intention to change the domicile” (see Drevon v Drevon), there is also no one feature of the case which clinches the outcome for which each contend. I have guarded against the temptation to take one isolated fact and extrapolate too much from it. I have had to stand back and review the scene as a whole; each fact adds contour to the landscape.
I am of course influenced by the fact that the Petitioner has lived in England only very temporarily, and now some time ago. She was a student in 1995-1997 and then in a house (with the Respondent) in multiple occupancy for about 1 year in 2001-2002, more than 15 years ago. She was not, on either occasion, “passing through” ([9](iv) above) the country, and – certainly in the latter period – qualified for consideration as an “inhabitant” (see again [9](iv)). An extended length of residence in a country is not a strict requirement to the establishing of domicile; the Petitioner has, in my judgment, lived here sufficiently to qualify for establishing a domicile in this jurisdiction (see [9](v) above).
The Petitioner is a meticulous person, by both parties’ accounts she is a record-keeper, and I found her recollection and account of past events was the more reliable of the two parties. That said, I have treated her self-proclaimed statements of intent with a degree of caution, just as I have treated the Respondent’s (see [9](xii)); it is in the interests of the Petitioner to declare her (and his) attachment to England, just as it is in the interests of the Respondent to distance himself (and her) from the country. I am also conscious that she (like the Respondent) signed up to having a purported but wholly erroneous ‘domicile’ in Italy in 2005.
I am satisfied that the Petitioner has maintained strong practical, financial and fiscal links with the UK throughout her multiple postings. London has been the city to which she has returned for important medical treatment. I find that she viewed London as her ‘base’, her adopted home, in place of Ireland, and she developed from 1995 onwards (more strongly from 2000) a “singular and distinctive” (see [9](vi) above) relationship with London which replaced that which she had had with her original home in Ireland. What I found surprising and distracting about the Petitioner’s case was that the Petitioner spoke with relatively little emotional warmth about, or attachment towards, England as a country. Even when discussing her thesis, the evidence was given without much discernible enthusiasm or passion for her quintessentially English subject; she told me little of what she actually liked about London or England. It was notable (as the Respondent observed) that she has not ever chosen to holiday here. This factor caused me to hesitate long before reaching my ultimate conclusion, but in the end it was not sufficient to counter-balance the other factors which demonstrated that London had, in my finding, become her ‘centre of gravity’, and the place of her permanent home (see [9](ii) above).
I find that from 2000 at the latest (though it was a developing picture from 1995), the Petitioner had acquired a domicile of choice in England and Wales, which has not been lost notwithstanding her various postings abroad.
Turning to the Respondent. As may be apparent from my review of the evidence (see in particular [51] / [52] above, for example), I consider that at one time, as a man in early adulthood through to his early 50s, the Respondent probably did acquire a domicile of choice here in England, based largely on a combination of (a) the duration of his lengthy residence here, (b) his first marriage (to an English woman), (c) the establishment of a family home in London, (d) his investment of additional property in London (the Fulham property), and (e) the tenuous continuing links to his domicile of origin (no visits to India prior to 2001 indicating a lack of connection with India, there being no property or investments there). His experience of England was not uniformly positive, I accept, and doubtless affected the depth of his emotional integration here. He nonetheless deposes in his statement to the fact that London was at one time his “home” (“London has not been my home for many years….”).
The Respondent’s evidence about past events and intentions was unfavourably distorted by his tendency to speak in generalisations and absolutes; he did not come across as a ‘details’ man, and indeed acknowledged the Petitioner’s greater care with records. For instance, he proclaimed that he had “no connections” with this country; that the civil service (in which he had worked for more than 30 years) was “an iota of my existence”; that the Petitioner had made no contribution to the Fulham property; that he had no “familial” links to England (see [57] above). All of these statements, on examination, are demonstrably inaccurate. He was rather short-tempered in the witness box, for which he graciously apologised. In evaluating his evidence, I was also inevitably influenced by the following:
He has been less than forthcoming, I would say reticent, about disclosure in the run-up to this final hearing, only relinquishing documents under specific challenge and court order; I was not entirely satisfied that I (or the Petitioner’s legal team) had seen all that there was to see about the leasing of the Fulham property, for example;
In December 2016, I find that he deliberately removed, or caused to be removed, many of the Petitioner’s files on the family computer. He initially denied that he had effected this (23 December 2016 correspondence reveals), but now accepts it. I do not find that he did so innocently; it was done in a quest to frustrate the pursuit of the Petitioner’s claims. These files were restored (in the main) when this activity was discovered. It was not the accident he purported to claim. He used a friend to achieve his objective, and communicated with this friend using what later became the parties’ older daughter’s phone, which explains how the Petitioner became aware of his activities;
As recently as 7 February 2017, shortly before this hearing and without notice to the Petitioner, he attempted to remove her Home Rights Notice on the Fulham property.
It transpired in these proceedings that during the marriage in 2013, by a signed letter of wishes, the Respondent had indicated his intention to exclude the Petitioner from benefiting from his will: “it is my wish that [the Petitioner] be excluded from having any connection whatsoever, in any respect of the creation, gestation or any part of any operations, and roll out and establishment of any aspect of the estate whether direct or indirect.” He refers to the hope that she will have the most “minimal of input” into the upbringing of the children in the event that he pre-deceases her.
When looking at his evidence as a whole, as I have earlier indicated, I am satisfied that his connections with this country were at one time strong; I am equally satisfied that they have over a period of time since 1995, and more particularly in the last ten years, withered. In my finding he did not specifically talk with the Petitioner of returning to live in England, as anything other than one of a number of options. I am satisfied that he did not see England as the place where he would ultimately retire, and I accept that there came a point when he ceased viewing it as his ‘home’. I sensed that he has more of an emotional investment in Italy or possibly even in Bosnia where he currently lives than in England – in neither place is there an animus manendi strong enough to acquire domicile, but it undoubtedly disrupts the minimal existing threads with the UK.
In short, the Petitioner was right when she filed her petition in not asserting that the Respondent is domiciled in the UK. He is not. I find that although at one time he had a domicile of choice in England, at some point in the last ten years this was lost or abandoned, and I find that his domicile of origin in India has revived. This revival coincides with, though is not driven by, the fact that his daughter, son-in-law and grandson now live there. I note that the Respondent indicates that he wishes to spend his final years in either India or Italy, and has, by his most recent will, indicated his wish to be buried in India “in my father’s village of birth … where I believe my reincarnation was rooted at the time of my father’s birth”.
Forum Non Conveniens
Given that jurisdiction is founded on the basis of the Petitioner’s domicile, I must now consider whether England is the forum non conveniens. I turn first to consider the principles of law.
The Respondent’s case is brought under para.9(1)/(2) of schedule 1 to the DMPA 1973 or at common law. The English Court has power to order a stay of proceedings on the basis that England is an inappropriate forum (forum non conveniens) if the respondent can show that there is another court with competent jurisdiction which is clearly or distinctly more appropriate than England for the trial of the action, and it is not unjust that the Petitioner be deprived of the right to trial in England. This is the well-established principle illustrated by Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“Spiliada”). The essential principles of Spiliada are set out in the leading speech of Lord Goff of Chieveley, at 476C–478E. He explained the elements of the test to be applied in a forum conveniens case in this way ((a)-(f)):
(a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
(b) In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. It is however of importance to remember that each party will seek to establish the existence of certain matters which will assist him in persuading the court to exercise its discretion in his favour, and that in respect of any such matter the evidential burden will rest on the party who asserts its existence. Furthermore, if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country (see (f), below).
(c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established. Such indeed appears to be the law in the United States….
There are cases where no particular forum can be described as the natural forum for the trial of the action. I can see no reason why the English court should not refuse to grant a stay in such a case, where jurisdiction has been founded as of right. It is significant that, in all the leading English cases where a stay has been granted, there has been another clearly more appropriate forum. In my opinion, the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. In this way, proper regard is paid to the fact that jurisdiction has been founded in England as of right (see MacShannon's case [1978] A.C. 795, per Lord Salmon).
(d) Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Or adopting the language of Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction and the places where the parties respectively reside or carry on business.
(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay.
(f) If, however, the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; see The Abidin Daver [1984] 1 A.C. 398, 411, per Lord Diplock, a passage which now makes plain that, on this enquiry, the burden of proof shifts to the plaintiff.
In this case, I have determined that jurisdiction founds with the Petitioner’s domicile in England. It is for the Respondent to demonstrate (see [70](ii)] above) that the divorce and ancillary matters may be tried more suitably for the interests of all the parties and the ends of justice in the Municipal Court of Sarajevo.
The parties have of course all last lived in Sarajevo, and the Respondent and children are still there. The children have never lived in England, and it is some time since the parties lived here together. I am conscious that both parties have recently invoked the jurisdiction of the Courts of Sarajevo to deal with issues concerning the children (the English court having declined to do so). These factors point towards Sarajevo as the appropriate forum.
However, various factors point away from Sarajevo as the appropriate forum:
The Petitioner no longer resides in Sarajevo;
The Respondent’s immigration status in Bosnia is “very precarious” now that the Petitioner has left;
The main assets of the marriage are either in this jurisdiction (the Fulham property) or elsewhere in mainland Europe (the Italian farmhouse, the Brussels property, the Respondent’s pension); there are no assets in Bosnia;
The Bosnian court has limited jurisdiction to make orders in relation to matrimonial property outside its jurisdiction, and even then only with the consent of the parties;
The parties are familiar with the English court process. They have litigated here over the last 12 months, and have relationships with distinguished legal teams; the Respondent has of course been divorced in the English courts before;
Both parties speak fluent English; neither speak Bosnian well;
London has been their common and constant reference point during the marriage.
I develop (ii) and (iv) a little further in the paragraph which follows.
As to [73](ii) above: The Respondent’s immigration status in Bosnia is currently at best uncertain. Since the Petitioner moved to Serbia with her work, the Respondent has been asked to surrender his identity card, and his diplomatic number plates. He has refused to do so. On 30 January 2017, the Respondent’s Belgian lawyers wrote to the EU Commission in these terms:
“[The Respondent’s] situation in Bosnia is very precarious and he was informed that he could be simply deported – which would also mean that his daughters would be put into care. … My client and the children are being put in legal limbo…”. (emphasis by underlining added).
Although the Respondent sought to play down the language of this letter, it has been very recently written, and its terms are stark.
The Respondent gave short evidence that he was considering buying a property in Bosnia in order to acquire immigration status; he told me that he had started his property search. This had not been trailed in the written evidence or in the opening statements at all, and is not well-evidenced (if at all). Mr. Scott advised me in final submissions that the Respondent may be able to acquire a temporary residence permit to be in Bosnia for one year, until his right of occupation there becomes more durable by his obtaining property. All of this seems to me to be somewhat speculative. If the Respondent is unable to stay in Bosnia, there plainly is no merit whatsoever in the parties litigating there.
As to [73](iv) above: A letter from the Petitioner’s lawyer in Sarajevo, Emir Kovacevic (undated but believed to be summer 2016), suggests (and this was not materially challenged by the Respondent even though there was no counter-evidence) that if both parties agree to participate in a divorce procedure, regarding also financial issues and issues relating to children, the matrimonial applications in Sarajevo can proceed. The Petitioner has avowed she will not consent to the exercise of this jurisdiction there. Further, it is said that only if both parties agree, can the Sarajevo court adjudicate in financial remedy proceedings about property abroad. The Respondent’s unconditional agreement to this exercise of matrimonial jurisdiction is far from assured, particularly given the Respondent’s clear perception, unapologetically asserted in his oral evidence, that the Bosnian judiciary are corrupt.
Having regard to the balance of factors which I have set out in [72] and [73], and explained further in [74-76] above, the Respondent has, in my judgment, failed to demonstrate that the case may be tried more suitably for the interests of all the parties and the ends of justice in Sarajevo.
The petition and ancillary financial remedy proceedings will therefore proceed in the English Court.
That is my judgment.