Kelly v Pyres, Court of Appeal - Civil Division, June 14, 2018, [2018] EWCA Civ 1368

Resolution Date:June 14, 2018
Issuing Organization:Civil Division
Actores:Kelly v Pyres
 
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Case No: B6/2017/0866

Neutral Citation Number: [2018] EWCA Civ 1368

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(Family Division)

Mr Justice Cobb

[2017] EWHC 449 (Fam)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 14/06/2018

Before:

LADY JUSTICE KING

LORD JUSTICE NEWEY

and

MR JUSTICE MACDONALD

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Between:

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Timothy Scott QC and William Tyzack (instructed by Stewarts Law LLP) for the Appellant

Charles Hale QC and Jonathan Rustin (instructed by Anthony Gold) for the Respondent

Hearing dates: 21 March 2018

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JudgmentLady Justice King:

  1. This is an appeal against an order made by Mr Justice Cobb on 8 March 2017 whereby the court found that at the date of her divorce petition of 28 July 2015, the applicant wife, Una Mary Kelly (``the wife'') was domiciled in England and Wales.

  2. In the light of his finding, the judge made an order that the applicant was entitled to proceed with her divorce suit in England under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 and Article 7 of the EU Regulation 2201 of 2003.

  3. The issue on appeal is whether the judge was wrong in having found the wife to have acquired a domicile of choice in England, her domicile of origin being in Ireland.

  4. The trial which lasted four days, focused not only on the wife's domicile but also on that of the husband and upon issues of forum conveniens. The judge found that the husband had retained his domicile of origin of India and that Bosnia (where he had issued divorce proceedings) was not the more convenient jurisdiction for determining the divorce. These findings are not challenged. The only issue remaining is therefore that of the domicile of the wife. A finding that the wife is domiciled in England is critical to her ability to pursue divorce proceedings, and therefore financial remedy proceedings, in this country given that it is common ground that she is not habitually resident in England.

    Backdrop to the Appeal

  5. The applicable law is well established and was agreed. The judge's findings of fact are, to all intents and purposes, accepted by both Mr Scott QC on behalf of John Norman Pyres (the husband) and Mr Hale QC who represents the wife. The basis of the appeal is therefore that the judge erred in his application of the law to the facts.

  6. Any dispute in relation to domicile and specifically the acquisition or loss of a domicile of choice, is inherently dependent upon findings of fact by the judge of first instance and the inferences drawn from those findings. Mr Hale has rightly reminded the court of the danger of an appellate court interfering or substituting its own view in cases of this nature. In particular he refers to the paradigm case of G v G [1985] 2 All ER 225 at 228; [1985] 1 WLR 647 at 651 and Piglowska v Piglowski [1999] 1 FLR 1360 together with in Re N (Residents: hopeless appeals) [1995] 2 FLR 230 where Ward LJ said:

    ``It may be an irony that the more finely balanced the decision, and the more acutely the judge has agonised over his decision, the less prospect there is of that decision being successfully appealed. The understandable reaction of the disappointed party is that the judge has got it wrong; therein lies the fallacy. The fallacy was exposed at the House of Lords in G v G...''

  7. It is with this in mind, together with the fact that the judge is a highly experienced specialist judge who heard evidence over three days, that this court has approached the appeal with considerable circumspection. In particular I have in mind the judge's express view that:

    ``6. 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.''

    Background

  8. The husband was born in India to Indian parents and moved to England in 1957, aged 13. It was common ground that the husband's domicile of origin was India. The husband completed his education in England and married an English woman. In the 1970s he bought two properties in England, one being a six-bedroom property in Fulham held in his sole name, which property featured significantly in the evidence. The husband also bought, and retains, a farmhouse in Italy. The husband worked in the civil service in England between 1972 and 1995 when he was seconded to the European Parliament in Luxembourg. He moved to the European Commission in Brussels in 1997. The couple met in Brussels in the late 1990s and married at the Italian farmhouse in August 2005.

  9. There are two children of the marriage, one born in 2006 in London and a second child in Italy in 2008. The marriage broke down in 2015.

  10. On 28 July 2015 the wife filed a divorce petition in England asserting jurisdiction of the English courts on the basis of

    a) her habitual residence (although this was not pursued) and

    b) her English domicile at the date of the petition.

  11. It is necessary therefore to consider in a little detail the background of the wife.

  12. The wife was born in England in 1972 of Irish parents. Her father was a surgeon working in England at the time. The family returned to live in Ireland when the wife was a baby and she remained there up to and including her university education, during which she spent an Erasmus year in Italy. As already mentioned, it was common ground that the wife's domicile of origin was, and is, Ireland.

  13. In October 1995, aged 23, the wife moved to Manchester to study for her Master's degree. In 1995 she obtained a British passport to which she was, in any event, entitled.

  14. The wife lived in England for the duration of her Master's programme, a period of some 18 months. She left England in March 1997 prior to her formal graduation as she had the opportunity to move to Brussels to take up an internship at the European Commission. When the internship came to an end the wife stayed on as a permanent employee at the Commission.

  15. The wife accepts that this period of 18 months has been the longest period of time in which she has lived in England.

  16. In her statement in support of her application, the wife said, in relation to her intention during the time she lived as a postgraduate student in Manchester:

    ``I decided to pursue post-graduate education and a career in England and in October 1995 I moved to Manchester to study for a Master's degree at the University of Manchester. I was awarded the Master's in July 1997. Upon completing my Master's I decided to apply for employment with UK companies and organisations with Britain being the base for my adult life. I never considered moving to Ireland as an option then or for that matter now.''

  17. The wife worked in Brussels until October 2001 during which time she met and formed a relationship with the husband. At the end of 2001 the wife moved to England to take up work for a company based in south west London on, the judge found, a time limited contract.

  18. The next 11 months marked the wife's second and only other period of residence in England. The wife and her husband cohabited in the Fulham property which was in multiple occupation. They did not have exclusive use of the house, but retained a bedroom and bathroom for themselves whilst sharing the use of the kitchen.

  19. The wife took up the post in England in February 2002, although by June, four months later, she had applied for a post in Albania with the EU delegation. By August 2002 she had been offered and accepted the job and left London in November to take up her new position.

  20. Prior to leaving England, the wife and the husband went to Ireland to collect her personal belongings from her parents' home which were thereafter left in storage at the Fulham property.

  21. The wife has not lived in this country in the ensuing 16 years, but has pursued, and pursues, a demanding and successful career within Europe.

  22. The husband initially remained in the UK following the wife's departure, but followed her to Albania in 2005 and as noted, the parties married at the Italian farmhouse in August 2005.

  23. A matter of days before the wedding, at the husband's instigation the parties signed a prenuptial agreement. This curious document describes the parties as ``British subjects'' and ``farmers'' and declares that the husband and wife are ``habitually resident and domiciled in Italy''.

  24. The wife returned briefly to London in the summer of 2006 to have her first child, although she left shortly after the birth to spend her maternity leave in Italy before returning again to Albania.

  25. In October 2006 the husband moved to Sarajevo to take up a new position with the European Commission where he remained until his retirement in 2009. Throughout this three year period, the wife remained in Albania and the parties had a long distance marriage between Bosnia and Albania. Their second child was born in Italy in 2008.

  26. In 2009 the couple were reunited when the wife was posted to the EU delegation in Sarajevo. In the same year, in an attempt to salvage their marriage, the parties attended marriage counselling in London.

    The judge's findings:

  27. Unsurprisingly given the nature of the suit, the judge made a number of specific findings of fact in relation to each of the parties. It is important also to note the judge's observations about the parties themselves. So far as the wife is concerned the judge found her to be [62] ``a meticulous person.'' The judge found her recollection and account of past events to be the more reliable of the two parties, although he had treated her ``self-proclaimed statements of intent'' with a degree of caution (just as he treated those of the husband). The judge reminded himself that the wife, like the husband, had signed up...

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