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

This is an appeal against the decision of Williams J (the judge) on 25 October 2024 by which he dismissed an application for divorce for want of jurisdiction. He decided that the courts of England and Wales did not have jurisdiction because the wife was not domiciled here on the date of her application on 11 October 2022, this being the only jurisdictional ground on which she relied.

The wife appeals from that decision. She appeared in person at the hearing below but was represented on this appeal by Mr Williams and Mr Watts. The husband appeared in person, as he did below.

In summary, the judge phrased the issue he had to determine as being:

“In this case the wife’s birth in Mauritius where her mother and father lived at the time would fix her domicile of origin in Mauritius. The issue in this case involves consideration of whether the wife acquired a domicile of choice in England at some point between her arrival in 2000 and her departure in 2019 and if so whether that revived upon her return in October 2022 or whether she acquired a domicile of choice in England for the first time between her arrival on 7 October 2022 and the issue of the petition on 11 October 2022.”

The judge found that the wife had acquired a domicile of choice in England and Wales “by some point prior to 2016”. He also found that this had not revived by 11 October 2022.

The wife appeals, contending that the judge failed to address the intermediate issue of whether the wife had lost her domicile of choice in England prior to 11 October 2022. Mr Williams submitted that, if the judge had applied the right legal test to this issue, he would have decided that the wife had not lost her domicile of choice.

It is relevant to note that, as well as contesting jurisdiction, the husband had applied for a stay of the proceedings here under Schedule 1, paragraph 9, the Domicile and Matrimonial Proceedings Act 1973 (“DMPA 1973”). The husband had commenced divorce proceedings in Mauritius on 18 November 2022 and contended that that jurisdiction was more appropriate for the determination of the divorce proceedings. The judge did not determine that application.

At the end of the hearing, the parties were informed that the appeal would be allowed and the matter remitted for rehearing. I set out below my reasons for agreeing with that decision. At the rehearing, the court will need to determine whether the wife had lost her domicile of choice in England prior to 11 October 2022. As explained below, the burden of proving this is on the husband and it will require consideration of all the evidence including of what happened after the family left England in 2019. The court will also need to determine the husband’s application for a stay.