Family

Divorce proceedings - wife's status as overstayer not preventing acquisition of habitual residence or domicile of choice - court having jurisdiction to entertain proceedings

Mark v Mark: CA (Lords Justice Thorpe, Waller and Latham): 19 February 2004

In divorce proceedings brought by the wife, the husband sought a stay on the basis that, since the wife was an overstayer, she was neither domiciled nor habitually resident in England and Wales and so, under section 5(2) of the Matrimonial Causes Act 1973, the court had no jurisdiction to entertain the proceedings.

The judge found that, although the wife was disqualified from claiming habitual residence, jurisdiction was established on the basis of domicile of choice notwithstanding illegality.

The husband appealed.

The wife lodged a respondent's notice to affirm on the basis that the judge had been wrong about habitual residence.

Charles Howard QC and Philip Marshall (instructed by Hughes Fowler Carruthers) for the husband; Chima Umezuruike and Adedamola Aderemi (instructed by Osibanjo Ete & Co) for the wife; Michael Nicholls (instructed by the Treasury Solicitor) as advocate to the court.

Held, dismissing the appeal, that the imperative to prevent the acquisition by illegal conduct of public law benefits had unnecessarily driven the adoption of an absolute rule which, in the context of private rights, was hard to justify, particularly since absolute rules had little place in family law where that the court had to enjoy a margin of discretion; that the finding as to domicile of choice would be upheld; that the rule denying habitual residence to overstayers, being based on public policy rather than construction, fell to be re-cast in the light of enactment of the Human Rights Act 1998; that a rule of public policy terminating proceedings so far advanced as these would be not only perverse but incompatible with the wife's rights under the 1998 Act; and that, accordingly, illegality did not oust jurisdiction.

(WLR)