Case No. ZC20D00020

2.The Husband was born in Norway on 5 June 1952, so he is 70 years of age. He was the founder of a business in Norway, known as Norwex, which is involved in sustainable cleaning products. It is clearly a very successful business. It is his case that he resides in a flat he has recently purchased in Norway, namely Trondheimsvegen 102 B, 2050 Jessheim. 3.The Wife was born in Turkmenistan, when it was still part of the Soviet Union, on 11 July 1971. She is therefore fifty years old. She is a Norwegian citizen but has not resided there since 2007. She lives at Wallsgrove House, Loughton, Essex. 4.The Husband married his first wife in 1974. They have two adult children, Beate and Thomas. The Husband qualified as a lawyer. He founded a Norwegian law firm which still exists and bears his name. He separated from his first wife in 1991 and subsequently divorced her. He purchased the business that turned into Norwex in 1994, whilst continuing to work in his legal firm. It was incorporated at Norwex AS in Norway in December 2000. He married his second wife in 1998 but there were no children of that marriage. They divorced in 2001.5.In 1994, the Wife gave birth to a son, Sergej in Turkmenistan. Sergej’s father plays no part in his life. Sergej lives in England with his wife and runs a business here. He was formally adopted by the Husband. There is a dispute as to whether this was in 2004 or 2008, but it does not matter. By 1995, the Wife was working as a teacher in Western Russia. She moved to Norway in 1999 and was working in a hotel. She married her first husband in 1999. They also divorced in 2001. She met the Husband in 2000 as they were neighbours. They began cohabitation in 2001 in the Wife’s rented flat before the Husband purchased a property for them in Jessheim, Norway. 6.They married on 4 October 2002 in Norway. Thereafter, they continued to live in Norway until 2007. They executed a Norwegian Marriage Contract, known as Ektepakt, on 31 August 2005. It provided for separation of property. In 2005, their son, X was born. He is therefore aged 16. He is now a boarder in England at Y school. He is a talented musician. 7.The parties decided to leave Norway in 2007. As with so many of these cases, the motive appears to have been to save tax. They decided to move, at least initially, to Malta and did so on 31 July 2007. They continue to own a property there, although I believe it was actually purchased in 2013 after the family left the country. They only remained in Malta for three years until 2010, when they moved to Austria. In July 2010, a house was purchased just outside Vienna, in Klosterneuburg. In 2013, a second property was purchased in Raneck, which I believe was more of a holiday home in the Alps. The same year, the Husband bought out his business partner in Norwex. At that point, he owned 90% of the shares. His children, Beate and Thomas, along with top management, held the remaining shares. On 1 January 2014, he retired from the day to day running of Norwex although he clearly continued to have some involvement in the business. Indeed, he remained the non-executive Chairman.8.On 17 October 2015, the parties entered a second Norwegian Marriage Contract. The Husband acted for himself, although I remind myself that he is a qualified lawyer. The Wife was represented by a Norwegian lawyer, Nina Reiersen, although the Wife says the lawyer had connections to the Husband. The Husband had, by then, established a second company, Nicolaisen Invest AS, which held 51% of the shares in Norwex. An agreement was reached whereby 15% of the Nicolaisen Invest shares would be transferred to the Wife. Indeed, the transfer happened. It was agreed that the shares would become separate property. The remaining shares were the Husband’s separate property. Norwegian law applies. There was a side letter which said, amongst other things that they believed it would be best for X to go to an English school in the future and that they were “therefore looking to relocate to Wales, Scotland, Northern England, possibly also Ireland, partly pending taxation of dividends”. A third Marriage Contract was entered on 7 February 2016, electing partial separation of property in accordance with the Norwegian Marriage Act. I believe this was done to ensure that the second Marriage Contract conformed to Norwegian law. It listed the parties’ separate assets and their joint assets. It said that, in the event of the break-up of their marriage, the Norwegian Marriage Act shall apply. 9.On 7 August 2017, the Husband and Wife purchased Wallsgrove House, Loughton, Essex. Thereafter, they spent two years, until around August/September 2019, upgrading and repairing the property. They also purchased a number of other properties around the main house, such as 4 Church Road, Loughton in July 2018 and Yew Tree Cottage in June 2019. In the summer of 2018, Sergej and his wife, Ghazal, married in the grounds of Wallsgrove House. 10.On 9 December 2018, the parties purchased a property in Dubai in the name of the Wife. It was purchased “off-plan”. In fact, this property has not, at least as yet, been completed, partially as a result of Covid-19. 11.On 23 March 2019, Nicolaisen Invest UK Ltd was incorporated. It is owned by Nicolaisen Invest AS, which holds 51% of Norwex. The UK company then acquired a property at 15 Brompton Square, London, SW3 for £5.85 million. This property was also refurbished at significant cost. I am told it is now on the market with a guide price of £14.9 million. 12.The parties came to England on 19 July 2019 with X. They stayed at Yew Tree Cottage as the bedrooms in the main house were not yet quite completed. The Wife’s case is that she moved to England at this point, but this is heavily in dispute. There is no doubt that return tickets had been purchased and the family flew back to Vienna on 30 July 2019. On 9 August 2019, the family went on holiday. This has been called the “Norwex Tour”. They visited Canada, Hawaii and Australia. The holiday was due to end on 18 August 2019 but, on 16 August 2019, the Husband was taken ill in Brisbane and was admitted to hospital. The Wife’s case is that, when it was clear the Husband would recover, she left Australia. She flew to Vienna but came to this country on 21 August 2019. The Husband was discharged from hospital in Brisbane on 23 August 2019. He flew to Vienna but was, subsequently, admitted to hospital there as well. The Wife returned to Vienna on 24 August 2019 for two days. X returned to school in Vienna on 27 August 2019. The Wife flew from Vienna to London on 28 August 2019 but then left for Oslo on 29 August 2019, with her friend, Patricia Heyland. She spent a week in Oslo before flying to London on 5 September 2019.13.On 6 September 2019, the parties had a housewarming party at Wallsgrove House, that has been described as a barbecue. X and the Husband had flown in from Austria. The guests were Scandinavian friends of the parties who they had met when X was at a Swedish school in Vienna. The guests stayed in the various properties purchased around the main house, whilst the parties were in the main house. The Husband and X returned to Vienna on 9 September 2019 and the Wife followed on 11 September 2019. She flew back to England on 13 September 2019 but returned to Vienna on 15 September 2019. She flew back to this country on 23 September 2019 but spent the night of 29 September 2019 in Vienna. She again spent one night there before coming back to London on 30 September 2019. She was here until 4 October 2019, when she flew to Vienna and remained for one week until 11 October 2019 when she returned here. The Husband says that he moved out of the family home in Vienna on 10 October 2019. His case is that he would not have done so if the Wife had not still been residing there. He says she then locked him out. The Wife was in London from 11 October to 13 October 2019 when she returned to Vienna before coming back to London on 16 October 2019. She stayed for a week. She then spent four nights in Austria before returning to this country on 27 October 2019. I remind myself that X was still at school in Austria throughout this period. She spent a further six nights in Austria from 4 November 2019. She came back to this country on 10 November 2019. I am satisfied that, thereafter, she only spent occasional nights in Austria.14.The Wife first filed a petition in this jurisdiction on 26 September 2019. It was issued but never served. At the time, the Husband knew nothing about it. In terms of jurisdiction, it pleaded domicile and six months’ habitual residence or simply twelve months’ habitual residence. Given the evidence I have heard, it really cannot be asserted that either of these grounds for jurisdiction were made out at that point. 15.In November 2019, X was unsuccessful in obtaining a place at Z School in England. I am satisfied that both parents knew this application was made. Slightly surprisingly, the parties spent Christmas 2019 together at Wallsgrove House. X was not present as he was skiing in Austria with a friend and the friend’s family. In January 2020, X returned to his school in Austria. On 23 January 2020, the Wife obtained pre-settled status in the United Kingdom with limited leave to remain. She issued a second petition in this jurisdiction on 29 January 2020. Jurisdiction was said to be domicile and habitual residence and that she had resided here for at least six months immediately prior to the petition, namely 29 July 2019. On 10 February 2020, the Wife deregistered in Austria for residence and tax purposes. 16.By now, the Wife had applied for X to attend Y School in England as a boarder on the basis of its reputation in music. I am clear that the Husband knew, at least in January 2020, that the application had been made. X was offered a place and the Wife accepted it. She removed X from his weekly boarding school in Austria on 14 February 2020 and brought him to England with two much cherished cats. At that point, I find that the Husband did not know that she had accepted the place but he did subsequently agree to the move. The Wife’s second petition was served on the Husband personally on 26 February 2020. X first attended at Y School on 1 March 2020 but he was only there for around three weeks before the school shut on 20 March 2020 due to Covid-19 and went to online learning. 17.The Husband acknowledged service of the second petition on 12 March 2020. He contested jurisdiction, denying that the Wife was domiciled here and denying that she had been habitually resident for six months’ prior to the date of the petition. He asserted her habitual residence to be in Austria and her domicile either Norway or Austria. He noted that she was a national of Norway. On 16 March 2020, he commenced separation proceedings in Norway. It is tolerably clear that he had to be resident in Norway at that time to do so. There was then something of a hiatus when the Wife’s solicitors applied for deemed service and for pronouncement of decree nisi but that was all eventually sorted out, with the Husband being given permission to file an Answer out of time. The Answer was dated 27 April 2020. He contested jurisdiction on the basis that the Wife was, at the relevant date, not domiciled here; nor habitually resident here; and she had not been habitually resident here for either twelve or six months. He denied irretrievable breakdown of the marriage and submitted that Norway was the more appropriate forum. 18.On 6 July 2020, the Husband was registered in Norway as having immigrated there from Austria with a relocation date of 26 June 2020. He then applied here, on 11 September 2020, to strike out the Wife’s petition for want of jurisdiction. In the alternative, he asked for the petition to be stayed on the ground that there were proceedings continuing in Norway and the balance of fairness was such that it was appropriate for the proceedings in Norway to take precedence. 19.The Wife then applied, on 14 September 2020, for permission for a further third petition to be issued. The application was accompanied by a copy of the petition she wished to issue. In such a petition, jurisdiction is, of course, pleaded by ticking one of a number of boxes. The only box ticked was that the Petitioner was habitually resident in England and Wales and had resided there for at least a year immediately prior to the presentation of her petition. The next box, which covers domicile and habitual residence for at least six months was not ticked. The case came before Mulkis DJ on 22 September 2020. The order provided that the application was to be dealt with inter-partes and that it required a one day listing before a High Court Judge. He also made various directions for the filing of evidence. 20.The Norwegian Court granted the Husband a separation licence on 6 October 2020 but the Wife decided to appeal the decision. In this jurisdiction, she filed her first witness statement on 10 November 2020. The witness statements are very long and cover many matters not relevant to what I have to decide. I subsequently directed further focussed witness statements, which I will deal with later in this judgment. I do not therefore intend to cover the material set out in these earlier statements in anything other than the briefest terms. In her first statement, the Wife said that the parties had planned to move to England for sometime. She added that she had relocated permanently to live in England in Wallsgrove House on 19 July 2019. She said that she had only been in Austria for 40 days and in other countries for 18 days since. During that period, she had spent 416 days in England. She filed a Form A here on 16 November 2020. On 25 January 2021, Jenkins DJ stayed it pending determination of the jurisdictional dispute.21.Notwithstanding his Norwegian proceedings, the Husband then filed a petition for divorce in Scheibbs, Austria on 18 December 2020. The petition asserts that there is jurisdiction in Austria on the basis that both parties were last habitually resident in Austria and the Husband remained habitually resident there. The Husband acknowledged that, pursuant to Brussels IIA, the petition would have to be stayed there pending the jurisdiction proceedings being determined here. 22.The Husband’s first witness statement is dated 23 December 2020. He said that his proceedings in Austria were purely protective. He asked why the Wife had not arranged for X to start school in England in September 2019 if she had genuinely moved here in July 2019. He did say, towards the end of his statement, that the Wife’s 15% shareholding in Nicolaisen Invest was worth around £Z. In addition, he considered her share of the jointly owned properties would be in the order of £10 million. The Wife filed a witness statement in reply dated 25 January 2021 in which she said that she did not shop around for jurisdiction. She had filed her third petition to reduce issues, such as removing the need to consider domicile. She did so to put the issue of jurisdiction beyond question.23.The Wife has filed one statement from a supporting witness, namely a Mrs Patricia Heyland. The statement is dated 25 January 2021. Mrs Heyland met the Wife at the Paracelsus Clinic in Zurich from 18 February to 18 March 2019. The Wife was not her patient but she supported her there. The Wife was deeply unhappy and talked about the loneliness of her life in Austria. She had never learned German. She asked about English schools for X. She said that she had resolved to make England her home as soon as it was practical to do so. She had not told the Husband as she was frightened of his reaction. Mrs Heyland added that the Wife had settled here properly in the summer of 2019. 24.The Husband filed a witness statement in reply to the first statement of the Wife on 18 February 2021. He denied that the Wife had moved here in the summer of 2019 and made the point that he had to move out of their Vienna home in October 2019 as she was still there. He added that she tried to prevent his son-in-law entering the property and locked the doors so he could not return. 25.On 24 February 2021, the Wife applied for permission for a further fourth petition to be issued. She argued that the passage of time meant that the court now indisputably had jurisdiction. The previous application was, in consequence, otiose following the passage of time and changes to the jurisdiction following Brexit. She asserted that highly technical arguments about jurisdiction were a waste of the court’s time. The fourth petition is also dated 24 February 2021. In relation to jurisdiction, three boxes are ticked. The first is the box claiming habitual residence here and that she had resided here for at least one year immediately before the application was made. The second box was that she is domiciled and habitually resident here and had resided here for at least six months immediately before the application was made. The third box is that she is domiciled here. When I heard the case on 28 April 2022, I was clear that this petition was caught by Brussels IIA. This is a transitional case pursuant to the Brexit legislation. The Austrian proceedings predated this fourth petition and thus it could not proceed. In fact, I decided to dismiss it. 26.HHJ Lynn Roberts allocated this case to the High Court on 5 March 2021 due to the complicated jurisdiction dispute and the fact that the underlying assets of the parties were over £200 million. She listed the case for directions before a High Court Judge. 27.The Husband’s Austrian proceedings were served on the Wife on 13 April 2021. The District Court in Scheibbs subsequently made an order, on 3 August 2021, staying the proceedings pending resolution of the proceedings here, in accordance with Brussels IIA. 28.There had been Children Act proceedings between the parties. I have not been given any specific details of these proceedings, but a final order was made on 21 May 2021 by HHJ Lochrane in the Family Court at Chelmsford. I have not seen the order but the basic terms will have been that X continue to reside in this country with the Wife and attend Y School in England but that he will have staying contact to the Husband. 29.The Wife’s appeal in relation to the Norwegian separation order was determined on 2 June 2021. The Norwegian Directorate of Children Youth and Family Affairs (Bufdir) allowed her appeal. The Husband’s application for separation was rejected on the basis that there was no jurisdiction. The reasoning was that the Husband had emigrated from Norway on 30 July 2007 and was living in Austria in March 2020 when he filed his petition in Norway. He had mainly stayed in the holiday home in Austria for the past year. He had acquired a home in Norway which he took possession of on 10 August 2021. The ruling did not prevent him from launching a new set of Norwegian proceedings in due course, whereupon the court would then consider whether the conditions for jurisdiction were met.30.On 22 June 2021, Nicolaisen Invest UK Ltd acquired a second London property, namely 83a Chester Square, SW1 for £5 million. Again, my understanding is that it is intended to develop/refurbish this property. 31.I heard the case for the first time on 26 July 2021. I had expected to be determining the issue as to whether the Wife should be given permission to issue her third and fourth petitions. As it was, leading counsel had agreed that, in accordance with the order of HHJ Roberts, the case was only listed for directions. I therefore listed the application for permission for determination by me as well. I also listed this final hearing with a five day time estimate to determine jurisdiction, stay and, if both were resolved in favour of the Wife, the divorce suit itself. 32.The Husband’s case is that he did move to Norway on 10 August 2021, following him taking possession of his flat in Jessheim. He therefore issued a further petition for separation in Norway the following day, 11 August 2021. My understanding is that this is a necessary step prior to issuing a divorce petition as it is necessary to prove the parties have been separated for a year before the date of the divorce petition. On 1 November 2021, the Norway County Governor granted the Husband a licence of separation. On 29 November 2021, the Wife appealed to Bufdir for the second time although this appeal was rejected on 3 February 2022. The separation order was upheld. The Wife then appealed that decision on 10 March 2022 to the Oslo District Court. In the alternative, she sought a stay pending the decision of the English Court. No decision has yet been taken in relation to her appeal but I am told that there is a hearing on 22 September 2022. 33.On 12 October 2021, the Husband made a claim against the Wife in Austria for the return of the original Marriage Contracts, together with a claim for damages of €45,000. 34.On 9 December 2021, the Wife changed her solicitors to her current solicitors. The case then came before me on 28 April 2022 for me to determine whether to grant the Wife’s application for permission to issue her third and fourth petitions notwithstanding the existence of her second petition. The case was fully contested. I gave an extempore judgment that I propose to release at the same time as this judgment is made public. I stayed the second petition on the basis that it would be dismissed on pronouncement of a final decree. I gave the Wife permission to apply for a matrimonial order (divorce) as contained in the third petition. I dismissed the fourth petition. Very briefly, I determined that the court was seized when the application was made for permission to file the third permission, such that it was not caught by the Brussels IIA rules following the institution of the Austrian proceedings. I also considered that there was insufficient prejudice to the Husband to refuse permission to issue. The fourth petition, however, was caught by BIIA. I refused the Husband permission to appeal to the Court of Appeal. He sought permission from the Court of Appeal on 16 May 2022. Moylan LJ refused permission on 23 June 2022. 35.The day after the application for permission to file the third and fourth petitions, namely 29 April 2022, I heard the Pre-Trial Review. I decided that, at this hearing, I would hear the jurisdiction dispute first; then the stay; and, if appropriate, finally the divorce. In fact, as things have turned out, very sensibly, leading counsel agreed to roll up the issues of jurisdiction and stay into one. I made various directions, including for composite further statements from the parties limited as to their page count. The Wife’s third petition was issued on 6 May 2022. It may well be the last petition ever to be issued under the old law. The Husband acknowledged service on 9 May 2022, indicating an intention to defend. His Answer is dated 20 May 2022. As before, he argues no jurisdiction on the basis that the Wife was not habitually resident for a year on the day of the petition, namely 14 September 2020. He further argues that Norway is the more appropriate forum. 36.The parties sensibly agreed, on 26 May 2022, to amended particulars of behaviour if I decided both of the preliminary issues in favour of the Wife. I do not need to set out the particulars as agreed. 37.The Wife’s main statement is dated 1 June 2022. She says that she came here permanently not later than 19 July 2019. She spent 84% of her time here between 19 July 2019 and 10 November 2020 and 87% from 14 September 2019 to 14 September 2020. She has barely left England at all since January 2021. This was her home then and it is now. It is where she wants to stay. The limited time she spent in Austria after 14 September 2019 was mainly sorting out things to be moved to England and seeing X, who remained a weekly boarder at the School in Vienna. English was the language spoken in the marriage. She has been away from Norway for 15 years. It would be a struggle for her to conduct proceedings in Norway. Wallsgrove was intended as their main home and they had the housewarming party from 6-9 September 2019 at which there were 27 guests. The Husband spends time with X but not in Norway. Sergej is now settled in this country and currently living with his wife in Knightsbridge. She sets out what she says is the Husband’s greater involvement in this country, such as the purchases of Brompton Square and Chester Square by Nicolaisen Invest UK Ltd. She makes a number of complaints about the Norwegian jurisdiction and her belief that she is vulnerable to having her dividends stopped or markedly reduced when the Husband’s daughter, Beate, with whom she does not have a good relationship, takes over the running of Norwex. She adds that, when the family left Norway, they never intended to return. Norwex’s headquarters are in Malta, not Norway. The Husband only finally bought a property in Norway in May 2021 for £1.1 m. When he recently went to hospital, it was in Malta. At the time of the marital contracts, they could not have divorced there as they were not resident in Norway. She notes that the Husband’s recent claim against her in Austria, dated 12 October 2021, gives the Husband’s Austrian address. She asserts that he only officially changed his residence to Norway on 10 November 2021. Finally, she says that the Norwex post tax profit in 2020 was £63.8 million. She received dividends of £1.5 million in 2019 and £1.6 million in 2020.38.The Husband’s main statement is also dated 1 June 2022. He gives his address as being Trondheimsvegen, Jessheim, Norway. He asserts that the Wife remained habitually resident in Austria until well into 2020. When they came here on 19 July 2019, they came for a holiday. They brought no extra luggage and packed lightly. Return flights were booked for 30 July 2019. He points out that the letter granting the Wife’s application for pre-settled status is dated 23 January 2020. After the trip here in July 2019, the family went on a world tour. The Wife returned from Australia not to this country but to Austria where, he says, she had appointments with three doctors. Although she then spent three nights in England, she was then in Vienna for two nights. She took X back to school. She returned to England on 26 August before going to Norway on 28 August for a week. Whilst she then had six nights in England, she then returned to Vienna on 11 September 2019. Although they did celebrate completing Wallsgrove House from 6 to 9 September 2019, the guests were those they had met in Austria. The Wife did not announce her move. She then spent 11 and 12 September in Austria before returning to England on 13 September 2019. He calculates that, between 19 July and 14 September 2019, she had only spent 22 out of 57 nights in England. She flew back to Vienna on 15 September 2019 and spent 8 nights in the Klosteneuburg property near Vienna, followed by another night on 29 September 2019. 45% of her time was spent in Austria in October 2019 and there was more time there in December 2019 and January 2020. X returned to school in Austria in January 2020. 39.He claims the parties had not separated on 14 September 2019. He adds that the Wife had not told either X or him of her intention to move to England. She was X’s primary carer but X was in Austria until February 2020. The Husband says that he did not move out of the family home in Vienna until 10 October 2019 and he would not have done so if the Wife had been living in England. The Wife then locked the doors to stop him re-entering. She only moved her cats to England in February 2020. He paid €70,000 into her Austrian bank account on 28 October 2019 as she only set up a bank account in England in March 2020. She de-registered in Austria for residency and tax purposes on 10 February 2020 and used an Austrian phone number until 20 September 2020. He then turns to forum. He says that he had no reason to remain in Austria once X was no longer living there. He agreed to rent a wing of a property owned by his son, Tom, at Nordbystien, Jessheim in early 2020 but he could not go due to the pandemic. He said he arrived in Norway on 26 June 2020 and registered there on 7 July 2020 but he accepts he remained registered in Austria for tax until Autumn 2021, arguing that it takes time to relocate. He then found the apartment he now owns and bought it in May 2021. He hired a plane and flew his possessions over in August 2021. He reminds the court that he had lived his entire life in Norway until he was aged 55. He then details his Norwegian connections and points out that the third Marriage Contract confirmed that the Norwegian Marriage Act would apply. His children and grandchildren live close to him in Norway. The purchases of property in Central London are merely business investments given the strength of the London property market. The majority of his cash assets are in Norway. 40.On 27 June 2022, the Husband made an application for a reporting restriction order. He sought for sensitive parts of the hearing to be heard in private with the Press excluded. I refused that part of his application and directed that the entire case was to proceed in public. Indeed, I was clear that anything relevant to the decisions I had to take, apart from the identity of X, should be capable of being reported. I did, however, make an order preventing the reporting of any information that related to the parties’ behaviour during the marriage, on the basis that this was intensely private information and entirely irrelevant to the issues I had to determine. 41.Both parties filed detailed Case Summaries/Position Statements prior to the commencement of the hearing. Mr Richard Todd QC and Mr Richard Sear, who appear on behalf of the Wife assert that, now that they are able to rely on the Wife’s third petition, it is self-evident that she has established jurisdiction. They turn to forum and ask, rhetorically, how the Husband can say that Norway is clearly the more appropriate forum when he has a petition extant in Austria. They argue that the only property in Norway is modest, recently acquired and litigation-driven. They assert that the Husband is spending most of his time in Malta. Indeed, they argue that they have a knock-out blow in relation to jurisdiction on the basis that the Husband’s application for a stay was made on 11 September 2020 in relation to the earlier Norwegian proceedings, commenced on 16 March 2020, that were dismissed on 2 June 2021. They make the additional point that the Husband has not relied on any Norwegian law even though the burden is on him to prove that Norway is the more appropriate forum. 42.Mr Nicholas Yates QC and Mr Christian Kenny, who appear on behalf of the Husband, assert that the Wife’s first petition was a dishonest attempt to found jurisdiction. However, they say that, even the third petition is fatally flawed as the Wife was not habitually resident, or even resident, in England by 14 September 2019. They remind me that she flew back to Vienna for 8 nights on 15 September 2019. In addition to the authorities that I dealt with in the case of