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

The grounds on which the courts of England and Wales have “jurisdiction to entertain proceedings for divorce” are set out in s. 5(2) of the DMPA 1973. As referred to above, the only ground relied on by the wife is that set out in sub-paragraph (g), namely that “on the date of the application … either of the parties to the marriage is domiciled in England and Wales”. The relevant date, therefore, at which the court had to determine the wife’s domicile was 11 October 2022.

I propose to deal with this issue at some length. First, because this issue will have to be determined at the rehearing and it is possible that the parties will, again, be acting in person. In addition, domicile is an issue which arises not infrequently in the context of applications for parental orders under section 54 of the Human Fertilisation and Embryology Act 2008 which, typically, are one-sided.

The general principles applicable to the issue of domicile are clear and are summarised in Dicey, Morris and Collins on The Conflict of Laws (16^th edition, 2022) (“Dicey”). These include:

“Rule 7 – No person can be without a domicile”, at [6R-010];

“Rule 8 – No person can at the same time and for the same purpose have more than one domicile”, at [6R-013];

“Rule 9 – An existing domicile is presumed to continue until it is proved that a new domicile has been acquired”, at [6R-017];

“Rule 11 – (1) Every person receives at birth a domicile of origin”, at [6R-025]);

“Rule 12 - Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise”, at [6R-037];

“Rule 13 – Any circumstance which is evidence of a person’s residence, or of his or her intention to reside permanently or indefinitely in a country, must be considered in determining whether he or she has acquired a domicile of choice in that country”, at [6R-049].

I deal with the issue of loss of a domicile of choice below.

Although Rule 9 is phrased as a presumption in favour of the continuance of existing domicile, this is, at [6-018], “not a legal rule” and its significance is that it means that “the burden of proving a change of domicile lies on those who assert it”. This means that, when this issue is raised, the court expressly has to decide whether the domicile of choice has been lost. Further, the effect of the application of this approach in this case is that the wife had the burden of establishing that she had acquired a domicile of choice in England before September 2019 and, if she succeeded in doing so (as she did), the husband had the burden of proving that she had lost it prior to 11 October 2022. Whether the wife had lost her domicile of choice was, therefore, an issue which the judge was expressly required to address. In addition, the judge was wrong when he referred only to the wife as having the burden of proof.

In respect of the standard of proof of change in domicile, Dicey at [6-019], summarises the position as follows:

“The courts have offered different formulations of the standard of proof required to rebut the presumption. It is clear that the standard is that adopted in civil proceedings, proof on a balance of probabilities, not that adopted in criminal proceedings, proof beyond reasonable doubt. Although Sir Jocelyn Simon P. said that “the standard of proof goes beyond a mere balance of probabilities” the prevailing view is that of Scarman J. that “two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists; and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words.” Cogent and clear evidence is needed to show that the balance of probabilities has been tipped, and this is true whether the issue is the acquisition or loss of a domicile of choice.” (emphasis added)

The passage quoted from Scarman J (as he then was) came from In the Estate of Fuld, Decd. (No 3) [1968] P 675 (“Fuld”) at p.686 D which I consider further below.

In Barlow Clowes, Arden LJ, as she then was, addressed the question, at [89], of “whether there is any difference in the strength of the case which Mr Henwood must show if he acquired a domicile of choice in Mauritius without his domicile of origin reviving and the strength of the case which he must show if his domicile of origin revived. It would be odd to have two different approaches within the same case”. Her answer, at [94], was that there should be no difference:

“It seems to me that as a general proposition the acquisition of any new domicile should in general always be treated as a serious allegation because of its serious consequences. None of the authorities cited to us preclude that approach, and such an approach ensures logical consistency between two situations where the policy interest to be protected is (as demonstrated above) the same. However, what evidence is required in a particular case will depend on the application of common sense to the particular circumstances.”

Moore-Bick LJ agreed with this, at [141]:

“I agree with Arden LJ that the weight of evidence required to displace the domicile of origin where that has revived merely by operation of law is no greater than that which is required to displace an existing domicile of choice.”

As referred to above, Rule 12, the acquisition of a domicile of choice requires “a combination of residence and intention of permanent or indefinite residence”. As referred to below, a domicile of choice is lost when these two elements are “given up”. They are, therefore, the obverse of each other. Residence requires no elaboration. It is the latter element, intention, which requires further consideration. This is addressed in Dicey at [6-043]:

“A person who determines to spend the rest of their life in a country clearly has the necessary intention even though he or she does not consider that determination to be irrevocable. It is, however, rare for the animus manendi to exist in this positive form: more frequently a person simply resides in a country without any intention of leaving it, and such a state of mind may suffice for the acquisition of a domicile of choice. The fact that a person contemplates that he or she might move is not decisive: thus a person who intends to reside in a country indefinitely may be domiciled there although he or she envisages the possibility of returning one day to their native country. If they have in mind the possibility of such a return should a particular contingency occur, the possibility will be ignored if the contingency is vague and indefinite, for example making a fortune or suffering some ill-defined deterioration in health; but if it is a clearly foreseen and reasonably anticipated contingency, for example the termination of employment, or the offer of an attractive post in the country of origin, succession to entailed property, a change in the relative levels of taxation as between two countries, or the death of one’s spouse, it may prevent the acquisition of a domicile of choice. If a person intends to reside in a country for a fixed period only, they lack the animus manendi, however long that period may be. The same is true where a person intends to reside in a country for an indefinite time but clearly intends to leave the country at some time.” (emphasis added)

It can be seen from this passage that, when determining whether a person has the requisite intention, at one end of the spectrum is a “vague or indefinite” occurrence and at the other end is a “clearly foreseen and reasonably anticipated” one.

I deal with this question further below but I would first repeat, as referred to by Mr Williams in his oral submissions, the note of caution sounded by Scarman J at the beginning of his judgment in Fuld, at p.682 F:

“This branch of the law is adorned by a great number of cases, not all of which is it easy to harmonise. The difficulty arises not from a lack of clarity in judicial thought but from the nature of the subject. Domicile cases require for their decision a detailed analysis and assessment of facts arising within that most subjective of all fields of legal inquiry - a man's mind.” (emphasis added)

He then added, at p.682 G/p.683 A, that: “[n]aturally enough in so subjective a field different judicial minds concerned with different factual situations have chosen different language to describe the law”. It would, therefore, be unwise to suggest that the cases establish, or indeed to seek to craft, a clear rule or a prescribed approach when dealing with the issue of contingencies in the context of determining whether a person has the required intention.

Rule 13 addresses the scope of relevant evidence. The effect is that, when determining a person’s domicile at a particular date, the court must look at the totality of the evidence: see, for example, Dicey, at [6-055] and Re Grove (1888) 40 Ch D 216 in which Lopes LJ said, at p.242: “I have always understood the law to be, that in order to determine a person's intention at a given time, you may regard not only conduct and acts before and at the time, but also conduct and acts after the time, assigning to such conduct and acts their relative and proper weight and cogency”.

A further example of this is Agulian, in which Mummery LJ said, when overturning the trial judge’s decision, first, at [46(1)], and then, at [51]:

“46 (1) First, the question under the 1975 Act is whether Andreas was domiciled in England and Wales at the date of his death. Although it is helpful to trace Andreas’s life events chronologically and to halt on the journey from time to time to take stock, this question cannot be decided in stages. Positioned at the date of death in February 2003 the court must look back at the whole of the deceased’s life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard’s aphorism that “Life must be lived forwards, but can only be understood backwards” resonates in the biographical data of domicile disputes.”;

“51 Thirdly, and connected to the first two points, the division of Andreas’s life in England into periods of time led the deputy judge to divorce the post-1995 events, from which he drew an inference of an intention to make a permanent home in England, from the pre-1995 events from which he correctly declined to make that inference. He should have considered, as at the date of Andreas’s death, the whole of Andreas’s life in retrospect in order to see whether an inference could be made that he intended to make his home permanently or indefinitely in England. By concentrating on the years at the end of Andreas’s life the deputy judge limited his perspective on Andreas’s life and did not take into account all the materials relevant to an inference about Andreas’s intentions. Had he taken into account all the connecting factors with Cyprus and England over the whole of Andreas’s lifetime, he would have found that the evidence was not sufficiently “cogent and convincing” to establish such a serious matter as a change of domicile. He would have concluded that the cumulative effect of the preponderance of the factors did not point “clearly and unequivocally” to an intention to make his permanent home in England, but rather reinforced the enduring character of his Cypriot domicile of origin.”

I draw attention, in particular, to Mummery LJ’s reference to the judge having wrongly divided the deceased’s life “into periods of time” rather than considering the whole of his life.

This is relevant in the present case because, when determining that “the wife’s domicile of choice in England ended” (paragraph 44) when the family left England in 2019, it is clear that the judge did not take into account evidence of any subsequent matters. This was a material error and one which might well have had a bearing on the judge’s decision because it meant that the judge excluded from his consideration the fact that the wife returned to live here in 2022 and has remained living here apparently with the intention of doing so indefinitely.

I would just note that the potential relevance of any circumstance, as identified in Rule 13, has to be applied in accordance with the normal rules applicable to decision making and the content of judgments. As was said in Ray v Sekhri [2014] 2 FLR 1168 by McFarlane LJ, as he then was, at [38]:

“It is not a requirement that the trial judge should slavishly list each and every such factor. He has a responsibility to look at the contours of the case and highlight the prominent elements that, in his view, fall for consideration and which may be determinative of the outcome.”

The loss of a domicile of choice is addressed in Dicey in Rule 15, at [6R-077]:

“(1)

A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

(2)

When a domicile of choice is abandoned, either

(i)

a new domicile of choice is acquired; or

(ii)

the domicile of origin revives.”

The commentary provides as follow, at [6-078]:

“A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. It is not necessary to prove a positive intention not to return: it is sufficient to prove merely the absence of an intention to continue to reside. The intention is not considered to have been given up merely because the propositus is dissatisfied with the country of the domicile of choice. In order to show that the intention has been given up, it may be desirable to prove the formation of an intention to reside in another country, but such proof is not essential as a matter of law.” (emphasis added)

As referred to above, this is the obverse of the acquisition of a domicile of choice so that what has to be established is the loss of the intention to reside in a country permanently or indefinitely.

I now turn to some of the authorities which have addressed the court’s approach when considering whether a domicile of choice has been acquired or lost in particular when the person’s intention is connected to or involves a contingency.

I start with Fuld. The testator in that case had a domicile of origin in Germany and the issue was whether he had lost it. When considering the nature of the required intention, Scarman J said, starting at p.684 F/p.685 A:

“a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities.” (emphasis added)

I would note four elements. The first connects with what Scarman J said, as quoted above, namely that the court is engaged in a subjective inquiry as to the person’s “state of mind”. Secondly, that a contingency can be relevant for the purposes of determining whether the person has the required intention but it is only one factor in that assessment. Thirdly, other relevant factors can include the importance of the contingency to the person and “his assessment” of its probability. Fourthly, there is “no clear line” and the “ultimate decision” will depend on the weight the court gives to the “various factors and future contingencies”.

The next case is In re Flynn Decd (No. 1) [1968] 1 WLR 103 (“Flynn”). The case concerned the well-known actor, Errol Flynn. The issue was where he was domiciled at the date of his death. His domicile of origin was Australia or Tasmania where he was born in 1909. Megarry J (as he then was) decided that, by 1942, he had acquired a domicile of choice in California. The issue, therefore, as set out in the Headnote, was “whether F.'s domicile at the time of his death was California or New York State or Jamaica as his domicile of choice; or whether he had abandoned a domicile of choice so that his domicile of origin revived”.

The first question Megarry J addressed was whether Errol Flynn had lost his domicile of choice in California. This raised an issue as to the applicable test which he set out, at p.133 A/D:

“There is no dispute that this domicile could be lost either by abandonment or by the acquisition of a new domicile of choice; but a curious point has arisen as to the intention required for abandonment. Given the necessary factum of a physical departure from the country of domicile, is it necessary to demonstrate that the departure was animo non revertendi, or does it suffice if it was sine animo revertendi? In other words, is it necessary to establish a positive intention not to return to reside in the country, or will it suffice if there is a merely negative absence of any intention to continue residing there?” (emphasis added)

Megarry J decided, after considering a number of authorities including Udny v Udny (1869) LR 1 Sc & Div 441, HL (Sc) and Fuld, that the correct approach was as it now appears in Rule 15(1). It was not necessary to establish a positive intention not to return but only the absence of an intention to continue residing there. This was because the loss of a domicile of choice is the obverse of its acquisition, as had been explained by Lord Hatherley LC in Udny v Udny, at p.450:

“It seems reasonable to say that if the choice of a new abode and actual settlement there constitute a change of the original domicile, then the exact converse of such a procedure, viz., the intention to abandon the new domicile, and an actual abandonment of it, ought to be equally effective to destroy the new domicile. That which may be acquired may surely be abandoned, and though a man cannot, for civil reasons, be left without a domicile, no such difficulty arises if it be simply held that the original domicile revives.”

Similarly, Lord Westbury said, at p.458: “Domicile of choice, as it is gained animo et facto, so it may be put an end to in the same manner”. In Megarry J’s words, at p.115 C: “Acquisition and abandonment are correlatives”. He then went on to explain:

“When animus and factum are each no more, domicile perishes also; for there is nothing to sustain it. If a man has already departed from the country, his domicile of choice there will continue so long as he has the necessary animus. When he no longer has this, in my judgment his domicile of choice is at an end, for it has been abandoned; and this is so even if his intention of returning has merely withered away and he has not formed any positive intention never to return to live in the country. In short, the death of the old intention suffices, without the birth of any new intention. In this way abandonment dovetails in with acquisition. It follows that in my view the true rule is correctly stated in Dicey and Morris on The Conflict of Laws, 8th ed. (1967), rule 10(1).” (emphasis added)

The wording of the then Rule 10(1) was the same as the current Rule 15(1).

Megarry J’s decision, that it was not necessary to establish a positive intention not to return but only the absence of an intention to continue residing, was followed by Sir Jocelyn Simon P (as he then was) in Qureshi v Qureshi [1972] Fam 173 (“Qureshi”). He noted, at p.191 D, that although Megarry J ’s comments were probably obiter, they “seem to me to be valid and valuable tools of analysis”. This included that, at p.191 C/D:

“Thirdly, given the necessary fact of a physical departure from the country of domicile of choice, for its abandonment the animus that must be shown is not necessarily non revertendi; it is sufficient that the residence in the new country is sine animo revertendi.” (emphasis added)

The next case is Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178 (“IRC v Bullock”). This considered the nature of the intention required for the purposes of acquiring a domicile of choice. The taxpayer’s domicile of origin was Canada. The issue was whether he had acquired a domicile of choice in England by 1971, by which date he had been living here for nearly 40 years. The taxpayer contended that he intended to return to Canada in the event of his wife predeceasing him but not until then because his wife did not want to move to live there. Buckley LJ set out his reasons for deciding that the taxpayer had not lost his domicile of origin, at p.1185 H-p.1186 G:

“The judge disregarded as remote the theoretical possibility that the taxpayer may somehow persuade his wife to live in Canada or that she may change her mind and reconcile herself to life in Canada. I think he was justified in so doing upon the findings made by the commissioners. I am consequently prepared to accept that in the present case the matrimonial home will continue to be in England as long as both the parties to the marriage survive. It is clear, however, from the findings of the commissioners that the taxpayer never abandoned his intention of returning to live in Canada in the event of his surviving his wife. The taxpayer's wife is some three or four years younger than he is and her health is good. The taxpayer said in his evidence before the commissioners that he would put the possibility of her predeceasing him at no higher than a possibility and considered it an even chance which of them might die first. We must, in my opinion, proceed upon the footing that the possibility of the taxpayer surviving his wife is not unreal and that he is at least almost as likely to survive her as she is to survive him.

No doubt, if a man who has made his home in a country other than his domicile of origin has expressed an intention to return to his domicile of origin or to remove to some third country upon an event or condition of an indefinite kind; for example. “if I make a fortune” or “when I've had enough of it” it might be hard, if not impossible, to conclude that he retained any real intention of so returning or removing. Such a man, in the graphic language of James L.J. in Doucet v. Geoghegan (1878) 9 Ch.D. 441, 457, is like a man who expects to reach the horizon; he finds it at last no nearer than it was at the beginning of his journey. In Aikman v. Aikman (1861) 4 L.T. 374, 376, Lord Campbell L.C. said that a mere intention to return to a man's native country on a doubtful contingency would not prevent residence in a foreign country putting an end to his domicile of origin.

In the present case it seems to me impossible not to hold that the taxpayer has always maintained a firm intention to return to Canada in the event of his surviving his wife. Whether that event will or will not occur is of course doubtful. That is the characteristic of a contingency. But there is no doubt about the nature of the contingency, nor will there eventually be any doubt whether the contingency has or has not occurred. There is nothing embryonic, vague or uncertain about the taxpayer's intention in this respect. Suppose a man to establish his home in a foreign country with the intention of returning to his country of origin when or if he survives the age of 60; or with the intention of returning to his country of origin when he retires; or of doing so if and when he inherits a particular family title. I apprehend that in neither the first nor the second case could it be contended that he had adopted a permanent home in the foreign country, notwithstanding that the event upon which he proposed to return to his country of origin was one which might never occur. His intention would have been limited to making a temporary home there. The occurrence of the contingency of the man inheriting a family title might well be more uncertain than his surviving the age of 60 or living to retirement; but, if there were a real likelihood of the contingency occurring, I can see no reason why that man should more readily be treated as having an intention of making a permanent home in the foreign country than the other two examples.…

The contingency of the taxpayer surviving his wife seems to me no more remote or unreal than this. Anderson v. Laneuville (1854) 9 Moo. P.C.C. 325 must be read in the context of the facts of that case, and Dr. Lushington's statement, at p. 334, that it could never be said that residing in a country until the death of an individual is a residence merely for a temporary purpose, cannot in my opinion be taken as an enunciation of a rule of universal application. The question can perhaps be formulated in this way where the contingency is not itself of a doubtful or indefinite character: is there a sufficiently substantial possibility of the contingency happening to justify regarding the intention to return as a real determination to do so upon the contingency occurring rather than a vaguehope or aspiration?” (emphasis added)

I have emphasised certain passages because, in line with Re Fuld, it seems to me that Buckley LJ was analysing the nature of the intention to determine whether it was a “real intention”. He used a number of different formulations: “not unreal”; “an event or condition of an indefinite kind”; “embryonic, vague or uncertain”; an event “which might never occur”; and “a real likelihood of the contingency occurring” before formulating the question as being: “where the contingency is not itself of a doubtful or indefinite character: is there a sufficiently substantial possibility of the contingency happening to justify regarding the intention to return as a real determination … rather than a vague hope or aspiration?”.

In Agulian, Mummery LJ, at [6], quoted with approval what Scarman J had said in Fuld, at p.684 F/p.685 D, as quoted above.

In Mark, the principal issue in the case was whether a person could become domiciled in a country in which their presence was unlawful. The House of Lords decided that they could. In the course of her speech (with which the rest of the Judicial Committee agreed), Lady Hale pointed out that having a precarious immigration status did not prevent a person from acquiring a domicile of choice in England:

“[39] An adult can acquire a domicile of choice by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely: see the joint report of the Law Commission and the Scottish Law Commission, The Law of Domicile (1987) (Law Com No 168, Scot Law Com No 107), para 2.6. There is a long line of cases showing that an alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal: see Boldrini v Boldrini and Martini [1932] P 9, CA; May v May and Lehmann [1943] 2 All ER 146; Cruh v Cruh [1945] 2 All ER 545; Zanelli v Zanelli (1948) 64 TLR 556; Szechter (orse Karsov) v Szechter [1971] P 286. Indeed, as already seen, aliens were always in that precarious position, and could otherwise never have established a domicile of choice here. In May v May and Lehmann the principle was applied to a German Jew who had been given only limited leave to land here in 1939. In Cruh v Cruh, Denning J applied the principle to a man of Austrian or German origin who had been recommended for deportation following a conviction for conspiracy and whom the Home Secretary intended to deport as soon as it became practicable to do so. Until the recommendation was actually effected, the domicile of choice remained. Once that happens, however, the domicile is lost.” (emphasis added)

Lady Hale next considered, from [40], the position if the person’s presence in the country was “unlawful”. In that case, at the date of the petition, at [22], the wife was “an overstayer and her continued presence here was an offence under sections 24(1)(b) and 24A of the Immigration Act 1971”. Lady Hale considered a number of authorities, both domestic and international, as well as Dicey. In the course of this review, she said, at [47]:

“One can also form an intention to remain in a place despite considerable uncertainty as to whether this will be possible. English law requires only that the intention be bona fide, in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.” (emphasis added)

She concluded that the fact that a person’s presence or residence was unlawful did not, as a matter of principle, prevent them from becoming domiciled here:

“[49] Hence, my Lords, it seems to me that there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country. Although her presence here is a criminal offence, it is by no means clear that she will be required to leave if the position is discovered. Her position is in reality precarious in the same way that the aliens' presence was precarious in the Boldrini [1932] P 9 line of authority. In fact, it was always much less likely that this wife would ever be removed from this country than it was that the propositus in Cruh [1945] 2 All ER 545 would be removed.

[50] This is not to say that the legality of a person's presence here is completely irrelevant.As in the precarious residence cases, it may well be relevant to whether or not she had formed the required animus manendi. But this is a question of fact and not, as it was held to be in Smith 1962 (3) SA 930, a question of law. Nor is it, as at times the Court of Appeal appeared to be saying, a matter of discretion or, as it is put in Rayden & Jackson on Divorce and Family Matters, 17th ed (1997), para 2.16, of the court being "hostile" to the assertion of a domicile of choice by an illegal entrant or resident. Either a person has acquired a domicile of choice in this country or she has not. If she has done so, she is not to be denied it because the court considers her case unmeritorious or tainted with moral or legal turpitude. If she has not done so, she is not to be granted it because the court considers her virtuous. It is a matter of fact whether she had the required intention at the relevant time.” (emphasis added)

It is significant that no investigation appears to have been undertaken in that case as to the likelihood of the wife being required to leave the UK and that the “considerable uncertainty” as to whether the wife would be able to stay did not undermine the existence of the required intention. It seems to me again that this shows that, first, while a contingency or uncertainty can be a relevant factor when the court is determining whether a person had the required intention, many factors can feed into the determination and, secondly, that even “considerable uncertainty” as to whether it can be fulfilled may not prevent the required intention being present.

In the same vein is Szechter (orse Karsov) v Szechter [1971] P. 286 (“Szechter”), a case which also concerned domicile for the purposes of divorce proceedings which had been commenced in August 1969. The husband and wife, who both had a Polish domicile of origin, had arrived in England at the end of 1968 and only had limited permission to live in the UK, initially until December 1969 and then extended until December 1970. Sir Jocelyn Simon P determined, at p.294 F/G, that the parties “had acquired and never lost a domicile of choice in England by residing here with the intention of making this country their permanent home”. It was “immaterial that their intentions were liable to be frustrated by the decision of the Secretary of State for the Home Department as to permission for their continued residence here” (emphasis added). In stating this, he followed Boldrini v Boldrini and Martini [1932] P 9 (“Boldrini”) in which Lord Hanworth MR had said, at p.15, that the fact that the petitioner was “an alien subject to the Aliens Order, 1920, under which he had to report any movements of his to the police and was subject in certain circumstances to deportation” was “beside the point”; the “possible danger of being deported if he misbehaves himself does not militate against the acquisition of a domicil of choice animo et facto” (emphasis added).

I propose, finally, to refer to some specific examples of cases which have involved contingencies.

In Doucet v Geoghegan (1878) 9 Ch D 441, the Court of Appeal upheld the decision that the deceased had acquired a domicile of choice in England in place of his French domicile of origin. He had lived for many years in England but had said that he intended to return to France. The trial judge had heard oral evidence from “numerous witnesses [who] deposed that he had made various parol declarations that he intended to return to France when he made his fortune”. As set out in the Headnote, these declarations were not considered “sufficient to rebut the conclusion to be derived from the facts of his life, especially of his English marriages” that he had acquired a domicile of choice in England. Sir George Jessel MR considered, at p.456, that these declarations were “much too indefinite”; a “declaration that a man means to return when he has acquired a fortune is not sufficient to outweigh actions which shew an intention of permanent residence” (emphasis added). James LJ at p. 457, said:

“He is reported to have said, that when he had made his fortune he would go back to France. A man who says that is like a man who expects to reach the horizon, he finds it at last no nearer than it was at the beginning of his journey. Nothing can be imagined more indefinite than such declarations. They cannot outweigh the facts of the testator's life.” (emphasis added)

I have highlighted the above passages because they provide a further illustration of the exercise in which the court is engaged. It is clear that even a contingency which is based on a vague or indefinite event will be relevant but it has to be weighed with the rest of the evidence to determine whether the person has the required intention.

In Goulder v Goulder [1892] P 240, which was relied on by Mr Williams, the husband was found to be domiciled in England. The husband had been born in France to English parents. The husband did not participate in the proceedings because his whereabouts were not known. His father gave evidence, at p.240, that “his own intention, and, as far as he was aware, his son’s intention, was to return to England when they had made sufficient money to maintain them”. The husband’s parents had moved to “a suburb of Calais, where a large lace-making business is carried on, chiefly by English”, at p.241/p.242. This community of English lace-makers had existed, at p.242, “for many generations”; “[t]hey appear to go and reside there for the purpose of carrying on their business and making money, but, according to the evidence, with the ultimate fixed intention of returning to England”. The judgment is brief and there is no investigation or consideration of the extent to which the husband’s intention of returning to England when he had made sufficient money was or was not realistic. The judge simply accepted the evidence that this was his intention.

In Winans v Attorney-General [1904] AC 287 (“Winans”), the House of Lords overturned the lower courts’ determination that the deceased had lost his domicile of origin and was domiciled in England because they concluded, by a majority, that the Crown had failed to discharge the onus of proving the necessary intention. In his speech, the Earl of Halsbury LC noted, at p.289, that the deceased intended to return to the USA, his domicile of origin, “when his boats succeeded”. His boats were “cigar-shaped boats, in which he took a deep interest as inventor”. Although, it “may be that your Lordships do not think that he was likely to succeed, but it may be confidently asserted that the inventor thoroughly believed he would succeed” (emphasis added). In his speech, Lord Macnaghten, at p.298, was “unable to come to the conclusion that [the deceased] ever formed a fixed and settled intention of abandoning his American domicil and settling finally in England”. This included because “I think up to the very last he had the expectation or hope of returning to America and seeing his grand schemes inaugurated” (emphasis added).

I, finally, refer to Holman J’s decision in Ray v Sekhri [2014] 1 FLR 612. One of the issues he had to decide was where the husband’s father had been domiciled when the husband was born. Holman J decided that the father had lost his domicile or origin in India and had acquired a domicile of choice in England. He summarised his conclusion as follows:

“[29] In my view, all the talk of ceasing to live in England and returning to live in India, as his home, was no more than a pipe dream after the 7-month period, and he knew it. His intention, from immediately after the return in November 1970, was to live permanently and indefinitely in England, for it was here that his wife, together with their then two children, was determined to live. Practical effect was given to that intention by the purchase of 30 Colin Gardens in July 1971. I am quite satisfied that Bikas had acquired an English domicile of choice by, at the latest, July 1971. That was his domicile when the husband was born in September 1971 and is accordingly the husband's domicile of origin.” (emphasis added)

It can be seen from this brief passage that Holman J referred to the father’s talk of returning to live in India as a “pipe dream” but he did so as part of his overall assessment of the evidence when determining the father’s actual intention. This decision was upheld by the Court of Appeal because, at [38], Holman J’s conclusion was supported by his findings which had been based on a sufficient assessment of all the evidence. In summary, at [39]: the father “had demonstrated an intention to reside in England which was fixed and was for the indefinite future. He had chosen to 'settle' here and bring up his family in England. The judge was entitled to characterise [the father’s] continued contemplation of living once again in India at some distant future time as no more than a 'pipe dream'”.

In conclusion, the general approach the court takes when determining the issue of domicile is as referred to above. This includes matters such as the burden of proof and the need for the court expressly to determine, if it is alleged, that a person has lost a domicile of choice.

The further question which arises in this case is the manner in which the court considers the issue of intention when the intention is linked in some manner with a prospective event or a particular contingency. In particular, is there a threshold that has to be surmounted?

First, it is clear that the acquisition of a domicile of choice and its loss are two sides of the same coin. Adapting what Megarry J said in Flynn, at p.115 C, if both residence and intention “are each no more”, a person loses or abandons their domicile of choice. This also means that, the “necessary animus”, as it was put in Flynn, is the same. This is summarised in Dicey, at Rule 15(1), at [6R-077]:

“A person abandons [or loses] a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.”

Secondly, as also summarised in Dicey, at [6-078], derived from what Megarry J said in Flynn and which was applied by Sir Jocelyn Simon P in Qureshi, at p.191 C/D:

“A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. It is not necessary to prove a positive intention not to return: it is sufficient to prove merely the absence of an intention to continue to reside.” (emphasis added)

Thirdly, the issue of a person’s intention is an issue of fact which requires the court to consider all the evidence. The court is determining, what Scarman described in Fuld, at p.682 F, as “that most subjective of all fields of legal inquiry - a man's mind.” As Arden LJ emphasised in Barlow Clowes, at [68], the “ultimate fact in issue was [the person’s] intention”; in order to “ascertain whether such an intention was shown on the evidence, the judge had to make primary findings of fact and then make a global evaluation of all the relevant facts”. The evidential landscape is very wide and potentially includes “[a]ny circumstance which is evidence of a person’s … intention to reside permanently or indefinitely in a country”: Dicey, at [6R-049].

The potential scope of the evidential landscape means that, as it is expressed in Cheshire, North and Fawcett, Private International Law, 15th Ed, 2017, at p. 156, “it is impossible to formulate a rule specifying the weight to be given to particular evidence”. This comment links with Megarry J’s observation in Fuld, at p.682 F, that it is not “easy to harmonise” what had been said in different cases which, in his view reflected, at p. 683 A, that different judges “concerned with different factual situations have chosen different language to describe the law”.

I repeat, therefore, my comment above that I consider it would be unwise to suggest that the cases establish, or indeed to seek to craft, a clear rule or a prescribed or harmonised approach when dealing with the issue of contingencies in the context of determining whether a person has the required intention. This applies to the role a contingency might have when the court is determining whether a person has or has not lost the requisite intention for the purposes of establishing whether a person has acquired a new or has lost an existing domicile. This element will only be one piece in the evidential puzzle and it would, therefore in my view, be equally unwise to focus too much on whether it is a likely or unlikely or a “vague possibility” or a “clearly foreseen and reasonably anticipated contingency” as though the decision depends on this issue by itself.

In Fuld, at p.685 A/B, Scarman J observed that “no clear line can be drawn” because, it is an issue of fact which will depend on “the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities”. So, for example, in Mark, the wife had the requisite intention to acquire a domicile of choice in England “despite considerable uncertainty as to whether this will be possible”: Lady Hale, at [47]. Indeed, perhaps even plainer examples are given by Boldrini and Szechter in which the court considered that the fact that the person’s intention to remain in England might be frustrated by the actions of the Government was, respectively, said to be “beside the point” and “immaterial”. I would also note that no significant analysis was undertaken of the likelihood of the contingency arising, namely the right to reside not being extended or the risk of deportation.

Another example is Winans in which the deceased, at p.289, “meant to travel back to his own country when his [cigar shaped] boats succeeded”. As to the prospects of the boats succeeding, the Earl of Halsbury said, at p.289: “It may be that your Lordships do not think that he was likely to succeed, but it may confidently be asserted that the inventor thoroughly believed that he would succeed”; and Lord Macnaghten said, about this and a related project, at p.296/p.297: “Of course, to us these schemes of Mr. Winans appear wild, visionary, and chimerical. But I have no doubt that to a man like Mr. Winans, wholly wrapt up in himself, they were very real”. Despite the deceased’s intention being connected with such an uncertain event, the House of Lords decided, when considered with the rest of the evidence, that the Crown had not established that he had lost his domicile of origin. As expressed by Lord Macnaghten, at p.298: “I think up to the very last he had an expectation or hope of returning to America and seeing his grand schemes inaugurated”. In his minority speech, Lord Lindley would have upheld the lower courts’ decisions, that the deceased had acquired a domicile of choice in England, including because he considered, at p.300/p.301, that: “A dim hope and expectation of being at some time able to return to America when he had succeeded in constructing a ship to his liking - which he never did - is spoken to by his son, but when last does not appear. I can find nothing to displace the only inference which I can draw from Mr. Winans' conduct for the last twenty or twenty-five years of his life”. Having regard just to these observations, it is not surprising that Scarman J considered that no clear line could be drawn.

In summary, an intention which is based on a contingency which is “much too indefinite” may not be “sufficient to outweigh actions which shew an intention of permanent residence” (Doucet). Also, as Buckley LJ said in IRC v Bullock, at p.1186 C, it may “be hard, if not impossible, to conclude that [a person] retained any real intention of … returning or removing” if that intention is based on “an event or condition of an indefinite kind”. However, although an intention which is based on a contingency that is “vague and indefinite” (Fuld) might often be insufficient or “ignored”, this is not a rule and does not mean that an intention based on such a contingency is necessarily insufficient to prevent the acquisition or the retention of a domicile of choice. In the particular circumstances it may be hard, or even impossible, but this will depend on the other facts in the case. It may be, for example, as in Szechter, that the court considered this to be “immaterial” in the circumstances of the case. Or, as in Winans, that although the event on which the deceased’s intention to return to the USA was uncertain, or even “chimerical”, this was insufficient to prove the intention required to establish a domicile of choice in England.

In conclusion, the nature of the contingency on which an intention is said to be based can, of course, be a relevant factor in the court’s decision. No doubt, also, in some cases this issue will feature more prominently than in others which may justify the court conducting a more detailed investigation of the nature of the contingency. I would suggest, however, that this should be conducted with a relatively light touch in respect of the likelihood or otherwise of the contingency occurring. Apart from the fact that it is only one factor and that no clear line can be drawn, this reflects the fact that the court is considering the person’s subjective intentions and determining whether it is “bona fide” as it was expressed in Mark or a “real intention” as it was expressed in IRC v Bullock.

I would further suggest that, if the court were to conclude that the intention was bona fide, it would be likely to require cogent evidence for a court to decide that the intention was not “real” because of the nature of the contingency or the likelihood of it occurring. This is because “cogent and clear evidence” is required to establish a change of domicile with the cases showing that, in general terms, if there is a threshold, it is a relatively high threshold before the court is likely to ignore or discount an intention because it is based on a vague or indefinite event. Or, to put it another way, before the court will decide that the intention is not sufficient to prevent the acquisition of a domicile of choice or not sufficient to prevent a domicile of choice being lost or abandoned.