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Case Information
Filed
2022-09-09
Docket
30 entries
Parties
Defendant
Fa
Lawyers
Docket Entries
- This case concerns the divorce proceedings between SA the petitioner, (to whom I shall refer in this judgment as "the wife"), and FA, the respondent, (to whom I shall refer in this judgment as "the husband"). This aspect of the divorce proceedings was heard before me over three days on 7th, 8th and 9th September 2022. Both parties appeared before me by Counsel: Mr Gerald Wilson for the wife and Ms Lily Mottahedan for the husband. I am grateful to both Counsel for the helpful way that they have respectively presented their cases and I want to express the view that both parties have been represented at this hearing at a first-class level.
- The court was presented with the following documents, all in electronic form:-
- I have also heard the oral evidence of both parties, subjected to appropriate cross-examination. I have also had the benefit of full submissions from each Counsel (as well as the respective notes which I have already mentioned) in their closing oral submissions.
- This has been a remote hearing, conducted entirely remotely on the CVP platform, with both the wife and the husband appearing from the UAE. I am pleased to say the quality of the sound and the vision has been good throughout and I have had no difficulties in hearing the evidence and seeing the parties giving evidence and the lawyers giving submissions. There has been very adequate time for cross-examination and submissions. I have no difficulty concluding that this was a hearing which was compliant with Article 6, a fair hearing.
- The history of the marriage in this case can perhaps be summarised as follows.
- It is common ground that neither party is habitually resident in England, so the issue here is one of domicile. Pursuant to Domicile and Matrimonial Proceedings Act 1973, section 5(2), an English court "has jurisdiction to deal with divorce proceedings if (and only if) on the date of the petition…both parties to the marriage are domiciled in England and Wales or either of the parties to the marriage is domiciled in England and Wales". The first question I have to answer is this: Does the English court have jurisdiction to hear an English divorce on the basis that one party or the other (or both) was domiciled in England and Wales at the time the wife issued her divorce petition in England on 20th September 2021?
- If my answer to the first question is in the negative then I need go no further, because this court has no jurisdiction to deal with the divorce proceedings (or and the financial remedies claim arising out of the divorce). If my answer to the first question is in the positive, however, then I need to go on to answer a second question: Does another country, in this case the UAE (in particular the Non-Muslim Family Court in Abu Dhabi where the husband issued proceedings on 30th August 2022) provide a more appropriate forum for the divorce and the financial applications. If so, should the court grant a stay of the English proceedings pursuant to Domicile and Matrimonial Proceedings Act (DMPA) 1973, section 5(6) and Schedule 1, paragraph 9 to allow matters to proceed in the UAE.
- I need, therefore to consider the domicile of both the wife and the husband as at 20th September 2021.
- Counsel have drawn my attention to a number of authorities on the interpretation of 'domicile'. In my view the most helpful summary of the relevant law is to be found in the judgment of Arden LJ in Henwood v Barlow Clowes International Ltd
- [2008] EWCA Civ 577
- I have considered all the written and oral evidence in this case against these legal tests and principles and have reached the following conclusions about domicile.
- At least until 2008 the husband had a domicile of origin, which was his domicile at birth, that is England. This proposition is common ground.
- At least until 1998 the wife had a domicile of origin, which was her domicile at birth, that is South Africa. This proposition is common ground.
- I am satisfied that at some point after 1998 (probably not very long after 1998, but certainly well before 2008) the wife acquired a domicile of choice, that is England. I am satisfied on the evidence, on a balance of probabilities, that (by a combination of her residence in England and the acquisition of an intention of permanent and indefinite residence in England) her domicile changed to that of England. I am satisfied that she had made the decision to make England her permanent home (that is her 'ultimate home' or 'where she would wish to spend her last days'). In reaching this conclusion I have particularly noted the following:-
- It is common ground that the move to the UAE by both the wife and the husband in February 2008 did not, straight away anyway, do anything to change the domicile of either of them. This was a move of residence for the purposes of carrying out paid work in a way which was advantageous in terms of tax and other matters; but (at least at the outset) it was a common assumption that there would be a return to England in due course, possibly on retirement or possibly if the husband's work in the UAE came to an end for another reason (for example if they discovered they did not like living in the UAE or it suited his career to move back to London). Certainly, there was no initial plan for the wife and/or the husband to remain permanently in the UAE – indeed it is common ground that in 2008 residence in the UAE was only permissible for as long as the husband has a sponsoring employer in the UAE – post-work residence in the UAE was not a permissible option.
- The question then is whether either or both of the wife and the husband, at some point between February 2008 and 21st September 2021, abandoned their pre-existing domiciles of England and acquired a new domicile of choice in the UAE (or possibly, in the wife's case, reverted to her domicile of origin).
- A good part of the evidence in the case was directed to this question. Plainly there is evidence on each side of this question and I have considered all of the oral and written evidence presented to me relating to this. I have reached a clear conclusion that the wife did not abandon her English domicile (or acquire a domicile of choice in the UAE) by reason of anything which happened between 2008 and 2021 and that she has at all times been domiciled in England. The situation is less clear in relation to the husband and, whilst I accept that his current state of mind is that he wishes to remain permanently in the UAE (even after he ceases to work for T solicitors) I have not been persuaded on a balance of probabilities that this was state of mind as at 21st September 2021 and I have concluded that his domicile remained as England as at that date. In reaching these conclusions I have particularly noted the following:-
- I therefore conclude that both parties were domiciled in England as at 20th September 2021 and therefore the courts of England and Wales do have jurisdiction to deal with the parties' divorce and financial remedies proceedings. Having answered the first question in the positive, I therefore need to go on to consider the second question.
- The second question for me to consider is essentially this: Does the UAE (that is the Non-Muslim Family Court in Abu Dhabi where the husband issued proceedings on 30th August 2022) provide a more appropriate forum for the divorce and the financial applications than the courts of England and Wales? If so, should I order a stay of the proceedings in England?
- The power to grant such a stay derives from Domicile and Matrimonial Proceedings Act 1973, section 5(6) and Schedule 1, paragraph 9:-
- Guidance on how these statutory provisions should be applied can be found in the judgments in, for example, De Dampierre v De Dampierre
- [1987] 2 FLR 300
- [1987] AC 460
- [2014] EWHC 3519 (Fam)
- Before I seek to apply these legal principles and this guidance to the facts of the present case I need to set out a number of other factual matters which have been the subject of evidence in the hearing.
- The parties have given, at my direction, a limited amount of financial disclosure. I decided not to require full disclosure by Form E, but there has been broad agreement before me, certainly no significant challenge, as to the financial picture presented by the limited disclosure which has taken place. The broad financial position is as follows:-
- I have been presented with a significant amount of evidence about the fairly newly created Non-Muslim Family Court in Abu Dhabi, where the husband issued divorce proceedings on 30th August 2022, and where (if I agree with the husband on forum and stay issues) the parties would progress their divorce and financial remedies proceedings. In particular I have been presented with a joint report dated 2nd June 2022 from the parties' respective Solicitors, Mr Byron James and Ms Diane Hamade, both of whom have good knowledge of this court. The following facts emerge from this report:-
- I have carefully considered all the above material, assessing all the circumstances of this case against all the legal principles, and I have reached the conclusion that the appropriate forum for this case is the UAE and that I should grant a stay of the English divorce proceedings. In reaching this conclusion I have particularly noted the following:-
- I am handing down this judgment by email in the early afternoon of 9th September 2022, with the intention of reconvening the court hearing on the remote platform later in the afternoon.
- It would be helpful if Counsel could, in the meantime, attempt to draft an order which includes the various undertakings which I have sketched out above. Before I make any order I need to be satisfied that the husband remains willing to give these undertakings and my allowing him to pursue the matter in the UAE will be conditional on the undertakings being executed.
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