Summary
A divorce petition was filed by the wife in 2008; the husband challenged the English court’s jurisdiction.
The parties were naturalized British citizens. They were both Libyan by birth. They married in Libya, having 7 children.
The parties left Libya in 1980, coming over to England where they subsequently obtained British citizenship.
It appeared that, between 2001 and 2006, the wife had been spending most of her time in Egypt (78%) rather than England (28%).
The question was whether the English court had jurisdiction under Article 3(1) of Brussels IIa. The English court answered this question in negative, but then it found that it had jurisdiction under the English law which applies in cases where Brussels IIa does not apply.
Sir Mark Potter P held:
“49 I have already indicated that in my view actual residence is satisfactorily established. As to the long term, I have well in mind the need to regard statements of intention as to the future with suspicion in a case of this kind; all the more so, if I consider that the wife's recollection has been self-serving in relation to the issue of habitual residence. Nonetheless, given the family history as I have recounted it, and the wife's situation following the end of her relationship with her husband, I find it inherently plausible rather than implausible that her long-term desire was to remain and settle in England as a British subject, well integrated into a substantial Islamic community, close to her London-based children, accessible for visits from her relatives abroad, and within easy reach of Belfast. I reject the arguments of Mr Le Grice and find that the wife's case on domicile is proved.
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50 That being so, I can deal with the issue of habitual residence shortly for the purposes of grounds (i) and (ii) of the wife's assertion of jurisdiction set out at paragraph 2 above.
51 As to ground (i), it is necessary for the wife to establish that she was residing in England for at least a year prior to 8 May 2008 i.e. since 8 May 2007. I am not so satisfied. At that date she had no established home of her own, living with either F or H during the short periods that she was in England, but for the most part being in Egypt attending to the needs of M and his family or in Belfast. Although she acquired [address withheld] in July 2007 and occasionally lived there, it was only on an intermittent and infrequent basis. A good deal of time and evidence was spent on an attempt by the husband to prove that the flat was simply a front designed to assist her case and that she was never there. The caretaker of the block in which the flat was situated was called to say that he had never seen her. However, by reason of the geography of the flats, the situation of the caretaker's office and the fact that the wife disposed of her own rubbish, this evidence was not persuasive. I find that the wife was at the flat on a number of occasions, but that, given that she was spending so much time in Egypt and Belfast, she disposed of that flat in December 2007, only establishing her residence in London when she acquired the flat with R at [address withheld] in early February 2008.
52 As to ground (ii), while satisfied that the wife was domiciled in England, I am again not satisfied that she has established the requirement of 6 months residence prior to petition.
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53 The wife is thus in the position that no court of any member state of the Community has jurisdiction pursuant to Article 3 of B II R and, under Article 7 (1) , jurisdiction falls to be determined by the law of England. That being so, by reason of the wife's domicile in England and Wales at the date of these proceedings, this Court enjoys jurisdiction over the proceedings under s.5 (2) (b) of the 1973 Act. The husband's application that the petition be withdrawn for want of jurisdiction therefore fails.” [49-53].