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Ally Tow
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DIVORCE JURISDICTION: Mark v Mark [2005] UKHL 42
Date:11 JUL 2005

(House of Lords; Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers and Baroness Hale of Richmond; 30 June 2005) [2005] 2 FLR 1193

The husband and wife each had Nigerian domiciles of origin. The wife obtained multiple entry visas to the UK. The wife overstayed and her continued presence in the UK was an offence under the Immigration Act 1971, ss 24(1)(b) and 24A. In July 2000 the wife had issued a divorce petition and an application for ancillary relief in London. The House of Lords held that the courts of England and Wales had jurisdiction to entertain the wife's petition both on the basis of her habitual residence here for the requisite period and on the basis of her acquisition of a domicile of choice here. Habitual residence for the purpose of the Domicile and Matrimonial Proceedings Act 1973, s 5(2) did not have to be lawful residence. Habitual residence and ordinary residence were interchangeable concepts: Ikimi v Ikimi [2002] Fam 72. The question of whether residence was habitual was a factual one to be determined by applying the test of Lord Scarman in Shah v Barnet London Borough Council [1983] 2 AC 309. The legality of a person's residence might be relevant to that factual question, although such cases would be rare. Per curiam: There would be other statutory provisions, in particular those conferring entitlement to some benefit from the State, where it would be possible to imply a requirement that the residence be lawful. As a matter of principle, a domicile of choice was established by the coincidence of residence and animus manendi. There was no reason in principle why a person whose presence in this country was illegal could not acquire a domicile of choice here. The objective of the rules determining domicile was to discover the system of law with which the propositus was most closely connected for matters regarding property and status. Domicile was a neutral rule of law and did not necessarily benefit the propositus. To recognise domicile as a connecting factor despite the illegality of the propositus presence would therefore not offend against the general principle that a person could not be permitted to benefit from his own criminal conduct. The legality of a person's presence in a country could be relevant to the factual question of whether the requisite animus manendi had been formed. Per Lord Hope of Craighead: cases where a question of public law was in issue had to be distinguished from cases where the issue was one of private law. The importance of that distinction had not always been recognised. Private law issues were referred to the law of a person's domicile. Illegality of presence was relevant to the question whether a person had the intention to reside in a country indefinitely, but not the question whether the person was present here.