In addition to being a cautionary tale in relation to costs the recent case of Sekhri v Ray  EWHC 2290 (Fam) takes a detailed look at issue of domicile.
The husband and wife were both living and working in England when they met through a dating agency in December 2008. They married in December 2009 and their son was born in December 2010.
The parties moved together during the relationship to Singapore and at the time divorce proceedings were issued by the wife in England they both resided in Singapore. Both parties were of Indian Hindu descent. The wife argued that they were domiciled in England or, in the alternative, she was domiciled in England. The husband sought to argue that he had never lost his domicile of origin which he said was India.
Within the judgment, Mr Justice Halman points out that as it is the wife who presented the petition the overall burden of proof is upon her to prove that one or both of the parties were domiciled in England on the relevant date. Her own domicile of origin was Indian and therefore the burden is on her to prove that she later acquired a domicile of choice. If she could prove that she or both of them, immediately prior to the move to Singapore, had been English domiciled then the burden shifts to the husband to prove that such domicile was lost when the parties moved.
He further points out that the standard of proof is the balance of probability and a domicile of origin is more enduring and adhesive than domicile of choice.
In terms of the husband’s domicile of origin the judgment, by necessity, takes look at his family history. Unlike the wife who was born in India the husband was born in England. His father moved to England in 1964 and with the exception of one period of around seven months during 1970 he remained living in England for the rest of his life.
If the husband’s father had acquired an English domicile of choice by the time the husband was born in 1971 then the husband’s domicile of origin is England. If not the husband’s domicile of origin is Indian. If the husband’s father acquired an English domicile of choice after September 1971 but before September 1987 when the husband attained the age of 16 then that became the domicile of dependence of the husband. If the husband’s father acquired a domicile of choice after the husband attained the age of 16 then that is irrelevant to the husband’s domicile.
Ultimately, the judge concluded that both parties were domiciled in England and the court had jurisdiction to entertain the petition.
It can be seen from the issues debated and the need to explore the complex factual matrix that issues about domicile can be complicated and difficult. It is important therefore to ensure that proper family law advice is sought at the earliest possible stage.
James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.
We can also advise on Schedule1 Children Act 1989 applications.