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

The judge summarised the parties’ cases and their evidence. He then addressed the law. Under the heading of domicile, he quoted from Agulian v Cyganik [2006] EWCA Civ 129 (“Agulian”) and Barlow Clowes International Ltd v Henwood [2008] EWCA Civ 577, [2008] BPIR 778 (“Barlow Clowes”) and referred briefly to Mark v Mark [2006] 1 AC 98 (“Mark”). The judge set out that the “requisite components” to establish a domicile of choice are: “(i) residence in another country; combined with (ii) a settled intention to make his home permanently or indefinitely in that country”.

He then summarised the position as follows:

“[28] So, it is well settled law that a person has a domicile of origin which remains with them throughout life and which, save in exceptional circumstances, cannot be extinguished. It can be put in abeyance by the adoption of a domicile of choice but will revive as and when the domicile of choice comes to an end. The onus of proving the acquisition of a domicile of choice lies on the party asserting the change and must be proved by cogent evidence to a high standard. I do not consider that this means anything other than that it must be proved on the balance of probabilities but in determining whether the balance is established that it is more likely than not, the court is acknowledging that a person’s domicile of origin as a matter of legal status carries with it a significant weight which requires the court to apply a degree of rigour to the evidence and what can properly be inferred from it to generate the weight which on balance of probabilities displaces the domicile of origin in favour of the domicile of choice. Domicile of origin and its replacement by a domicile of choice are significant legal issues of status rather than simple matters of fact.”

The judge then, as referred to above, set out the “issue” he had to determine:

“[29] 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.”

It can be seen that the judge only expressly referred to: (i) the acquisition by the wife of a domicile of choice prior to 2019 and its revival in October 2022 or, alternatively, (ii) the acquisition of a domicile of choice by her in October 2022. In particular, he did not refer to the need to consider the question of whether, if the wife had acquired a domicile of choice by 2019, she had lost it by 11 October 2022.

Under the heading of “Evaluation”, the judge set out his analysis and conclusions. The judge again summarised what he had to determine:

“[34] The first issue for determination is whether the wife has established that she was domiciled in England and Wales as of 11 October 2022. It is for the wife to establish that she was so domiciled on the balance of probabilities but bearing in mind the jurisprudence which confirms that the establishment of this legal fact requires appropriately weighty evidence. In many cases, possibly most cases, the issue will be whether an individual has established a domicile of choice which displaces their domicile of origin. In this case whilst that is the position there is also a wider perspective in that the wife’s case is that her domicile of origin was displaced at some point after 2000 in favour of a domicile of choice in England which was established as she made her home here together with the husband and their children. The wife’s case at times appeared to be that this domicile of choice had endured throughout her absence from England between 2019 and 2022 but was also put on the basis that if that domicile of choice had been lost after her departure in 2019 then it had been acquired again between her return to England on 7 October 2022 and the issuing of the divorce petition on 11 October 2022.” (emphasis added)

The judge understandably remarked, at [35], that his task was “more opaque” than it might have been if the parties had been represented. However, the judge’s focus can be seen again from his reference to the need to evaluate “the wife’s intentions between 7-11 October 2022” and to the evidence being “thin”, “[b]oth in respect of the acquisition of a domicile of choice between 2000 and 2019 and its re-acquisition in 2022”, notwithstanding that he had recorded in [34] in the words I have emphasised, that her case was also that she had not lost her domicile of choice between 2019 and 2022. Further, when referring to the acquisition of a domicile of choice requiring both residence in England and a “settled intention of permanent or indefinite residence in England” he repeated, without limitation, that “the burden of proof lies on the wife to establish [these] issues” (emphasis added).

I have emphasised the above words because, while the wife had the burden of establishing that the court had jurisdiction in respect of the divorce proceedings, which depended on whether she was domiciled in England and Wales on 11 October 2022, the burden in respect of the issue of domicile was not solely hers. As explained further below, it was for the wife to establish that she had lost her domicile of origin and had acquired a domicile of choice in England and Wales prior to 2019 (i.e. when the family left England). If she did, the husband then had the burden of proof of establishing that she had lost this domicile of choice prior to 11 October 2022.

The judge decided that the wife had acquired a domicile of choice in England. In summary, this was because:

“[38] Over a period of between 13 and 16 years the family made their home in England and took steps which were consistent with them having a settled intention to remain here permanently or indefinitely. That would support the wife’s case that in this period of time it was her intention to remain permanently or indefinitely in England and the weight of the evidence would support her having acquired a domicile of choice by some point prior to 2016.”

The parties did not agree about when they had started to consider leaving England. The judge’s conclusion was:

“[40] It matters not perhaps when the ultimate decision was taken to leave England but it is clear that the family came to that conclusion. The wife’s evidence and that of the husband establishes that they agreed that life in England could not be sustained on the income the husband’s business was generating whilst they were based in England. It is clear that they agreed that they should leave England with a view to moving to the Far East where it seemed that the prospects for generating a far more successful business existed and which might generate sufficient money to enable the family to return to England with sufficient wealth to then re-establish a home and lifestyle in England to which they aspired.”

Pausing there, this finding was consistent with the wife’s case as to what lay behind the proposed move to Singapore. The judge also found that “both agreed that when in Mauritius (or possibly prior of going to Mauritius) the wife had said that they should have a sum of £140-160k in the bank before she would contemplate physically relocating to Singapore because that would provide sufficient security to ensure they could be accommodated, and the children educated privately whilst the husband pursued his business”.

The judge next set out his conclusion as to the effect of the family leaving England in September 2019:

“[43] The date on which the family decided to leave England with a view to making a life in due course in Singapore and in the meantime in Mauritius at the latest is September 2019 although possibly significantly earlier. The inescapable conclusion of this decision is that the wife’s intention to make England her permanent or indefinite home at that point came to an end. The aspiration to return to England in due course if they made their fortunes in Singapore whilst they resided elsewhere is not sufficient to maintain a domicile of choice which requires physical residence and intention to permanently or indefinitely reside in that country. At the point of departure from England on an indefinite or permanent basis the wife’s residence there came to an end as did her intention to live there permanently or indefinitely. Whilst absence from a country for a temporary period would not undermine physical residence or the intention to live there permanently or indefinitely the departure of the wife together with the husband and their children was plainly not a temporary departure. Unless the family’s finances prospered to such a degree that life in England was viable and unless the family agreed to return that marked the end of the family’s life in England. Everything thereafter in terms of the future was uncertain. The wife herself said they had contemplated perhaps returning to England if the finances allowed when [the elder child] was in late secondary school or for university. Most of the family furniture and electrical goods were sold and the remaining personal items including children’s clothes were placed in storage; where they remain to this day at a cost of about £80 per month. […]

[44] That being so the wife’s domicile of choice in England ended and her domicile of origin in Mauritius which had been in abeyance during her domicile in England, revived. As it happens her Mauritian domicile of origin also coincided with where she was resident - there is no question in this case of an alternative domicile of choice having been acquired.” (emphasis added)

It can be seen that, although not identified as an issue earlier in his judgment, the judge did in fact decide that “the wife’s domicile of choice in England ended”. However, it can also be seen that the judge did not include within his analysis at this point evidence of what happened after September 2019. His determination, that the “inescapable conclusion” of the decision to leave England in September 2019, was not based on an analysis of all the evidence, but was confined to matters up to the “point of departure from England”. The judge’s conclusion that “the wife’s intention to make England her permanent or indefinite home at that point came to an end”, was based on the nature of the parties’ plans when they left England. He considered that the “aspiration to return to England in due course if they made their fortunes in Singapore … is not sufficient to maintain a domicile of choice”; it was “not a temporary departure”; and “[e]verything thereafter in terms of the future was uncertain”.

The judge then considered what had happened after the family arrived in Mauritius. In the course of this, he said:

“[46] … The wife’s case was that the family never settled in Mauritius and never had any fixed plans to remain there which would appear to be consistent with their original intentions but how that changed over the course of time is less clear. Given the wife had revived her domicile of origin in Mauritius her intentions would not be relevant to that domicile although might inform what her intentions were upon leaving Mauritius.”

I refer to this because it again makes clear that the judge did not consider evidence as to what had occurred after September 2019 was relevant to the question of whether the wife had lost the domicile of choice she had acquired in England prior to 2016.

It is also relevant that, when the judge was considering “the reacquisition of a domicile of choice” in England by the wife, he again said that “the burden of proving residence and intention to live indefinitely or permanently in England still lies on the wife in this case”. It is also right to note that, when considering whether the wife had reacquired a domicile of choice in England and Wales, the judge made a passing reference to “[w]here a domicile of choice is abandoned”.

After detailed consideration, the judge decided that the wife had failed to establish that she had reacquired a domicile of choice in England by 11 October 2022.