CA-2024-002730 - [2025] EWCA Civ 1022

The judge was undoubtedly not assisted by the fact that both parties were acting in person. However, it is regrettably clear to me that the judge, having found that the wife had acquired a domicile of choice on England by 2016, did not properly consider the issue of whether she had lost this by 11 October 2022. There are passages in the judgment which might support the view that he did address this issue, as submitted by the husband. However, this was a key issue in the case which needed to be expressly and clearly addressed and, even if touched on by the judge, he did not clearly address it.

Further, in any event, even if the judge did decide that the wife had lost her domicile of choice in England, his decision is not sustainable for other reasons. First, the judge considered that the burden of proof was solely borne by the wife. As referred to above, the husband had the burden of proving that the wife had lost her domicile of choice in England.

Secondly, the judge did not consider the whole evidential history when deciding the issue of domicile. His conclusion that the decision to leave England in 2019 meant that “the wife’s intention to make England her permanent or indefinite home at that point came to an end” was based only on an analysis of the evidence up to that point and did not include any analysis of what happened thereafter. He did not, for example, include within his analysis the significant fact that the wife and the children returned to England in October 2022 and have been living here since then.

Thirdly, the judge did not apply the right legal approach. The judge did not address what Arden LJ referred to as the “ultimate fact in issue”, namely the wife’s intention. He decided that the circumstances surrounding the family’s departure from England in September 2019 were such that the “inescapable conclusion” was that the wife’s intention to make England her permanent or indefinite home “came to an end”. This is, with respect, a circular argument that does not explain why the wife no longer had the required intention. The wife’s case was that she retained or had not lost the intention to make England her permanent or indefinite home because she intended to return here. As Lewison LJ said during the course of the hearing, one way of analysing the key issue was whether the wife’s state of mind was sufficient to continue to support her domicile of choice in England. The judge does not directly engage with this issue. His focus was on the fact that the future was “uncertain”, an issue to which I now turn.

Fourthly, the judge’s conclusion that the family’s decision to leave England in September meant that the wife’s intention “to make England her permanent or indefinite home at that point came to an end” was based on the plan to return being an “aspiration” and that “[e]verything thereafter was uncertain”. Simply stated, that her intention had come to an end because the intention to return was based on an “aspiration” and the future was “uncertain”. As can be seen from the cases referred to above, the fact that something is “uncertain” does not mean that the required intention is not present. This can be seen from Mark and from IRC v Bullock. In the latter case, the fact that the husband’s intention to return to Canada was based on an uncertain contingency, namely his wife’s death, was sufficient for him to retain his domicile of origin. Accordingly, a more detailed analysis was required in the present case in order to decide whether the wife had or had not retained the required state of mind.