Case No. ZC20D00020

v Marinos [2007] EWHC 2047 (Fam); [2007] 1 FLR 694 and V v V [2011] EWHC 1190 (Fam); [2011] 2 FLR 778 were wrong and that the correct position was to be found in the observations of Bennett J in Munro v Munro [2007] EWHC 3315 (Fam); [2008] 1 FLR 1613 and in the textbooks Dicey, Morris and Collins and Rayden and Jackson. 47.I can see absolutely no reason to revisit my decision in Pierburg. Indeed, Mr Todd has not really argued that I should. Moreover, Mr Yates has drawn to my attention a recent decision of the CJEU that, although not binding upon me, is persuasive as to the correct interpretation. He says that it confirms my interpretation of indent 5. The decision is IB v FA C-289/20. The judgment of the European Court agrees with the Opinion of the Advocate General, which says at [56] that indent 5 is satisfied:-“if it is the place of habitual residence of the applicant, provided that it has been his or her place of habitual residence for at least a year before the application was made…”48.It follows that I approach indent 5 on the basis of my decision in Pierburg. The law is therefore as follows. Burden and standard of proof49.The burden of proof to establish that this court has jurisdiction lies on the Wife. The standard of proof is the civil standard of proof, namely the balance of probabilities. Language barrier50.English is not the first language of either party, although they both speak it very well. Both gave evidence to me in English without interpreters. I accept that the fact that English is not their first language means I must take great care in assessing the evidence of both spouses. Processing information provided in a foreign language may put the participant at a disadvantage. I must guard against the very real possibility that questions or answers or both are misunderstood or, at the least, nuances and shades of different meaning are lost in the process. Lucas direction 51.Mr Yates has invited me to give myself a Lucas direction as to lies. I therefore do so. First, I must decide whether or not either spouse has deliberately told lies either to me or in their written statements. If I find that they did, I have to ask myself why they lied. The mere fact that a witness tells a lie is not in itself evidence that the issues in the case should be decided against that witness. A witness may lie for many reasons. They may possibly be “innocent” ones in the sense that they are not relevant to the issues in this case. For example, they may be lies to bolster a true case; or to conceal some other conduct not related to the matters with which I am dealing; or out of panic, distress or confusion. It follows that, if I find that a witness has lied, I must assess whether there is an “innocent” explanation for those lies. However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the issues in the case. Habitual residence52.There is no dispute that, for these purposes, you can only have one habitual residence. Habitual residence is defined as the place where the person has established, on a fixed basis, his or her permanent or habitual centre of interests. All relevant facts will be taken into account in determining that. There is no specific timeframe for having established habitual residence. In some cases, it can be done very quickly. In others, it will take longer. If there is a planned, purposeful and permanent relocation to another country, habitual residence can be acquired contemporaneously (or virtually contemporaneously) with the loss of a previous habitual residence. For example, in Z v Z (above), Ryder J found that a wife had established habitual residence in England “at or shortly after” the family moved to London.53.There has been debate as to whether a person could ever be without a habitual residence. It seems that you can be for a brief period but only whilst you establish your new centre of interests. The example given by Munby J in Marinos is that of a wife who lost her habitual residence in Greece as the aircraft on which she and the children were travelling to London took off. She then acquired a new habitual residence in this country as the aircraft touched down at Heathrow.54.The test is qualitative not quantative. In other words, it is not simply a head-count of days and nights, although time spent in a particular location will be a relevant factor in most cases. 55.I accept entirely that there is a difference between residence and habitual residence. Unlike with habitual residence, a person can be resident in two countries at the same time (see Marinos at Paragraph [48] and V v V at Paragraphs [50] and [51]). The obvious example would be the wife in Marinos who had homes in Greece (where her husband and children lived) and in England (where she worked and lived with her parents). In that case, she divided her time roughly equally between the two, but time spent in the two locations does not have to be equal. 56.There is, however, no doubt that residence has to be something more than just a place where you or your spouse own a property. It has to be somewhere where you reside as opposed to where you visit. The most obvious example would be a holiday home which would not amount to residence, but another example might be the super-rich who own numerous homes all around the world. They visit these homes. They do not reside in each and every one of them. 57.I now turn to my decision in Pierburg. I decided that, pursuant to indent 5, a petitioner has to show habitual residence both at the date of the petition and for at least a year beforehand. I consider that my decision was correct. In so far as necessary, it is supported by the decision of the CJEU in IB v FA. I propose to proceed to decide this case on that basis although I will also consider, briefly, the position if I was wrong and a petitioner only needs to show residence for the year before the date of the petition.58.Finally, Mr Yates draws my attention to the decision of Ryder J in Z v Z (above). The case makes clear that my focus is on the centre of interests. All relevant factors have to be taken into account, including both intention and objective connecting factors. There is no requirement that the centre of interests must be permanent. It need only be habitual but it must have a stable character. Whether or not a party communicates an intention to the other party is a relevant factor but I am clear that the reason for non-communication must be considered. It may be that the reason is sufficient for the court to say that the failure to communicate is not a relevant factor.