A v L [2009] EWHC 1448 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No FD08D02126

[2009] EWHC 1448 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 25/06/2009

Before

THE PRESIDENT OF THE FAMILY DIVISION

Between

F.A.Petitioner

F.L.Respondent

Charles Howard QC and Dominic Brazil (instructed by Bishop & Sewell LLP) for Petitioner

Valentine Le Grice QC (instructed by Goodwins Family Law Solicitors) for Respondent

Hearing Hearing date: 24 March 2009

Judgment

Sir Mark Potter P:

INTRODUCTION

[1]The preliminary issues before me arise in the course of extended matrimonial proceedings between the petitioner wife and respondent husband following the final break-up of their marriage in 2006 when the wife left the former matrimonial home at A. Avenue, Queen’s Park, London NW6. The husband applies that the wife’s divorce petition filed on 6 May 2008 and all applications ancillary thereto be withdrawn on the ground that the Court does not have jurisdiction to hear the petition. In the alternative, he applies that the proceedings be stayed under paragraph 9 of Schedule 1 to the Domicile andMatrimonial Proceedings Act 1973 as amended (“The 1973 Act”) on the ground that he has himself commenced proceedings for divorce which were at the date of the wife’s petition, and are, continuing in the Nasr City Family Court, Cairo, Egypt which proceedings are capable of affecting the validity or substance of the marriage and that the balance of fairness and convenience between the parties makes it appropriate to impose a stay.

[2]By her petition, the wife asserts the jurisdiction of the court under Article 3 (1)(a) of Council Regulation (EC) No 2201/2003 (“B II R”) on the alternative grounds(i) that the wife is habitually resident in England and Wales, having resided in England for at least a year immediately prior to the presentation of the petition,

(ii) that she is habitually resident in England and Wales, has resided in England for at least 6 months prior to the presentation of the petition and also has her domicile here. In the final alternative, she asserts

(iii) that if the Court is not satisfied as to either (i) or (ii), it has jurisdiction on the basis that no contracting state has jurisdiction under Article 3 and the petitioner is and was at the date of her petition domiciled in England and Wales: see Article 7 of BIIR and s.5(2)(b) of the 1973 Act.

[3]The wife’s petition (“the second petition”) was filed on 6 May 2008, closely following the dismissal of an earlier petition (“the first petition”) presented by her on 18 October 2006 which was dismissed for want of jurisdiction on 25 April 2008 by order of Mr Stephen Bellamy QC sitting as a Deputy High Court Judge for reasons to which I will shortly turn. Suffice it to say at this stage that the Deputy Judge, who did not deal with the question of the wife’s domicile, held that the wife did not at time of issue of the first petition satisfy the court that it had jurisdiction on the basis then asserted, namely that the petitioner and the respondent were both habitually resident in England and Wales. Background and History of the Proceedings

[4]Although the parties are naturalized British citizens, they are both Libyan by birth. There is no dispute that their domicile of origin is Libya where they were brought up, married and established a home in August 1963. Between 1964 and 1976 the wife bore seven children of the marriage (3 sons and 4 daughters), all now adult and married and none of whom live in Libya.

[5]In 1976 the parties decided to leave Libya for political reasons and took steps to move money to an English bank. In 1980 the entire family left Libya for England in order to settle here. They have never returned since.

[6]Within months of their arrival in England, however, because of the activities of agents of the Libyan government in this country, and in particular the shooting of a Libyan journalist in Regents Park mosque, the husband and wife felt unsafe in England and moved to Cairo where they lived for 10 years until 1990. However, as a Libyan, the husband was unable to work or run a business in Egypt and the family remained in Egypt in rental accommodation and upon temporary visas, the husband continuing to be involved in political activity relating to Libya. He became leader of a Libyan organisation. Again, the family became concerned for their safety. In 1990 their two oldest sons, SF. and SM. (then aged 26 and 24) went to Germany, where they claimed and obtained political asylum followed by German nationality. SF. has since settled in London; SM divides his time between Egypt and London.

[7]On 25 August 1990 the wife, the husband and the five remaining children, a son SH. (then 18) and four daughters, DF. (24), DA. (20), DN. (15), and DK. (14) came to England and sought political asylum which was granted.

[8]In 1993 the family was granted indefinite leave to remain and the husband bought A. Avenue, a substantial seven bedroom property as the family home. In 1993, the husband established a property development company in England, Y. Ltd, which dealt in London property and which operates to this day.

[9]The parties both applied for British citizenship. In the year 2000, W obtained it and two of the daughters, DA. and DN. also became British citizens.

[10]In 1997, the husband had bought a three bedroom flat in Nasr City, Cairo which was initially intended as a home for SF. and a holiday home for the parties when they visited Egypt. In 1999 he also bought a flat on the Mediterranean coast at a holiday village. In 2004 he brought a flat in C. Street, Cairo. Until 2001 the husband and wife made occasional visits to Egypt but remained based in London. In 2003, by which time the husband was spending the majority of his time in Egypt, he nonetheless obtained British nationality.

[11]From 2001 onwards the wife and DN. (whose relationship was very close) also went frequently to Egypt, the wife spending an average of 72% of her time between 2001 and July 2006 in Egypt and only 28% in England, as found by Stephen Bellamy QC in his judgment dated 25 April 2008.

[12]The reasons for this appear from the judgment at paragraph 54(i) as follows:

“The evidence clearly establishes that the centre of this wife’s world and interests had been and remains her family. In my judgment this centre moved from London to Cairo in May 2001. As the children married and went off to establish their own families, she found herself looking after the interests of DN. and her husband. When a decision was made to take DN. to Egypt for health reasons, it was entirely consistent with this wife’s life over many previous years, to accompany her daughter and live with her in Egypt. Whether this was anticipated to be for a short period or not does not matter, since various other family circumstances, besides DN.’s health, such as the engagements and weddings of SM. and DN., contributed to keeping this wife in Egypt. If her husband had decided they would stay in Egypt, she would more than likely have agreed, because this was how she perceived her wifely duty. There was one very small part of her oral evidence which gave an insight into her thinking and cultural mores. She answered a question about where and why one of her daughters, DK., was living to the effect that she was in Cairo because she had a duty to be with her husband, who was living there.”

[13]In July 2006 the parties flew back to England from Egypt, to A. Avenue at a time when the marriage had become unhappy because of the husband’s relationship with a much younger woman in Egypt. There were also arguments between the parties over whether or not the house should be sold and (as the wife wished) a smaller house should be acquired in London. The marriage then broke down entirely following the discovery by the wife of a letter to the husband from his lawyer giving advice in relation to a divorce. The wife resolved not to return with the husband to Cairo but to remain in England and bring divorce proceedings here. On 18 October 2006 she filed the first petition and left A. Avenue. She has not since returned.

[14]She then embarked on a somewhat peripatetic existence, having no home of her own, and staying with various members of her family. When in England she stayed with one or other of her sons SF. and SH. in North London, (both are of British nationality and living in London with their children).

[15]Her son SM. was then living in Cairo with his family. In March 2007, he became seriously ill and, between 1 April and end of June, the wife made several trips to Egypt in order to help look after them.

[16]The wife’s son-in-law, Dr J., who is a British citizen married to DA., lives and practises in Northern Ireland as a consultant paediatrician. He arranged for SM. to have treatment in Northern Ireland. SM. travelled to Northern Ireland to obtain such treatment at the end of May and in early June the wife travelled to Egypt to help look after SM.’s children during that period.

[17]In July 2007 she acquired a tenancy of a flat at S. Gardens, off E Road in London, which she retained until December 2007 staying there briefly on occasion (see further below). In the event, the majority of her time continued to be spent outside England. She went back to Egypt between 12 July and 26 August to join a congregation of family members, many of whom could not get a visa to come to England.

[18]On 26 August 2007 she flew back to London but went straight on to Northern Ireland with SM. and DF., because SM. had a further appointment for medical treatment and she wished to be with him, as well as visiting DA. and her Northern Ireland grandchildren.

[19]There has been considerable dispute about the amount of time the wife spent staying with DA. and Dr J. in the last 4 months of 2007, her movements between London and Northern Ireland over that period, and whether or not the husband was also in Northern Ireland at one particular point. It has also been suggested by the husband that she never stayed in the flat in S. Gardens and had only acquired it essentially as a charade to establish habitual residence in London when she was in fact in Egypt or Northern Ireland. However, it is clear that the wife certainly stayed in London in November 2007 for the hearing before Stephen Bellamy QC, flying to London on 14 November for that purpose, and flying back to Northern Ireland to spend the Christmas period in overcrowded conditions with the J. family until she returned to London on 6 January 2008.

[20]Before she went in December 2007 she had surrendered her tenancy of S. Gardens and thus again had no address of her own in England. However, following her return from Northern Ireland, on 2 February 2008, she obtained a tenancy, with DF., of a flat at C Street London NW3 and has lived there ever since.

[21]On 31 January 2008, at a time when the Judgment of Stephen Bellamy QC had been reserved in the first divorce proceedings, the husband commenced divorce proceedings in the North Cairo Family Court. No notice was given to the wife who was unaware of the proceedings which were subsequently struck out by the Egyptian Court.

[22]On 8 April 2008, the husband issued divorce proceedings for the second time in Nasr City family court No X/2008. The wife was not informed of these proceedings until 25 April 2008 when the judgment of Mr Bellamy QC was handed down, following which, on 29 April 2008 some documents pertaining to the Egyptian proceedings were put through the wife’s letterbox. I refer in more detail to the Egyptian proceedings below.

[23]On 6 May 2008, having been living in London at C Street for some 3 months, the wife filed her second petition.

[24]It is at this point pertinent to note in relation to the first petition that, so far as the jurisdiction of the English Court was concerned, before Stephen Bellamy QC the wife relied solely upon the assertion that the petitioner and the respondent were both habitually resident in England and Wales: (see Article 3(1) of BIIR); consequently the judgment in those proceedings related solely to the question of the wife’s habitual residence at the time the first petition was filed.

[25]The key findings of Stephen Bellamy QC so far as the issues before me are concerned, are those relating to the length of time spent by the wife in Egypt after May 2001 (see paragraph 11 above) and those contained in paragraphs 56-58 of the judgment as follows: “56. I have little hesitation in finding that both parties were habitually resident in England up to May 2001. This was the centre of their interests on a fixed and habitual basis. But in my judgment the centre of the wife’s interests, taking into account the above, and in particular the times spent in Egypt and the reasons for so doing, between May 2001 and July 2006 fixed the habitual centre of the wife’s interests in Egypt and not in London. The whole quality and quantity of her life was focused in Egypt at this time. She may have intended to return to live in England in the future, and not remain permanently in Cairo, but that is not the point. During this period she became habitually resident in Egypt, and lost her habitual residence in England, because that was were she established her centre of interests on a fixed and habitual basis.

[57]After 19 September 2006 when she realised her marriage was over and that her husband might divorce her, she changed her centre of interests. She then became determined and focussed on remaining in England, but by the time she had presented her petition this was only at most 29 days later. That is not an appreciable period in the context of this case and far short of the period of twelve months required by the Council Regulation. She might very well have acquired habitual residence in England shortly thereafter, since it can be acquired fairly quickly, but her evidence failed to satisfy me that she did.

[58]In those circumstances the court did not have jurisdiction on 18 October to entertain her petition which will be dismissed.”

[24]The judge was concerned to note that the wife had never put forward a case based on domicile and he recorded at paragraph 27 of his Judgment that “I do not have the material nor have I had any submissions on domicile to come to a view on either party’s domicile.” At paragraph 29 he observed “No attempt at all was made by the wife at this hearing to establish her domicile in England (although it may well be she is so domiciled) …” The Judge had, at the outset of his judgment, observed the irony of the position that, if the wife lost her argument on jurisdiction, she would present a fresh petition to the court as to which her counsel said the husband would have no valid grounds to challenge the jurisdiction. On inquiring why that course was not being pursued instead of the jurisdictional argument before him, he was dismayed to be informed that it was all to do with costs.

[25]In that respect, and contrary no doubt to the intentions of the wife’s advisors, the issue of costs went against the wife and she was obliged to present her second petition, in relation to which the jurisdiction of the Court is asserted on the basis set out in paragraph 2 above.

[26]So far as that second petition is concerned, I have received lengthy affidavit and oral evidence upon the issues both of habitual residence and domicile, as to which Counsel have made exhaustive submissions.

[27]As part of these submissions, there has been argument over the extent to which, in relation to the findings of Mr Bellamy QC, the matter is res judicata so far as the situation and intentions of the parties as at the date of issue of the first petition are concerned. I do not intend to spend time considering that matter, because nothing I have heard from the parties or counsel has done anything to persuade me that the findings of Mr Bellamy QC were other than correct or that, if all the matters considered before him were re-explored, any different findings would obtain. Consequently, I have taken his judgment as the starting point for my own considerations.

JURISDICTION

[28]In considering the question of the wife’s domicile, I do not propose to burden this judgment with authority. In relation to the acquisition of a domicile of choice, ten relevant propositions of law, derived from Dicey, Morris and Collins: The Conflict of Laws (14th ed.) are conveniently set out in the judgment of Arden LJ in Henwood v Barlow International (In Liquidation)

[2008] EWCA Civ 577

andthere appears to be no dispute between the parties that the considerations which I must apply are as follows, (the bracketed references below being to the text of Dicey).

[29]No person can be without a domicile and no person can have more than one domicile. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. Every person receives at birth a domicile of origin (Rule 9 at p130) and they can acquire a domicile of choice by the combination of(a) residence in fact, coupled with

(b) the intention of permanent or indefinite residence, but not otherwise (Rule 10 at p 133 and para. 6-042). See also per Baroness Hale in Mark v Mark

[2005] 2 FLR 1193

at para 39. In this connection, it is not necessary that the period of residence should be long in point of time; its importance lies in its being evidence of animus manendi. (paras. 6-034 to 6-035) So far as that animus is concerned, it must be a fixed intention to reside in the relevant country not for a limited period or a particular purpose, but must be general and indefinite in its future contemplation, and directed exclusively towards one country (para 6-039).

[30]Whereas a person who determines to spend the rest of their life in a country clearly has the necessary intention, even though they do not consider that determination to be irrevocable, it is rare for such an intention to exist in so positive a form: more frequently a person simply resides in a country without any intention of leaving it (other than for temporary purposes) and such a state of mind may suffice for the acquisition of a domicile of choice. In deciding whether a person has the intention to reside permanently or indefinitely in a country it is relevant, though not decisive, to consider whether they became a naturalised citizen of that country (para 6-041).

[31]Rule 11 of Dicey makes clear that any circumstance which is evidence of a person’s residence, or of her intention to reside permanently or indefinitely in a country, must be taken into account when determining whether she has acquired a domicile of choice in that country. Paragraph 6-047 sets out the wide variety of matters which may be afforded greater or lesser weight according to the circumstances of a given case. It is noted that a circumstance which is treated as decisive in one case may be disregarded in another, or even relied upon to support a different conclusion (para. 6-048). Thus, while there is a presumption against the acquisition of a domicile of choice by a person in a country whose religion, manners and customs differ widely from those of their own country, that presumption is rebuttable.

[32]In the light of the way the husband’s case was put by Mr Le Grice QC for the husband in his final submissions, it is important to bear in mind that the presumption that an existing domicile continues until it is proved that a new domicile has been acquired, is stronger in the case of a domicile of origin than a domicile of choice and that “unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists” (see paras. 6-108 to 6-109 and per Scarman J: In the Estate of Fuld (No. 3) [1968] p. 675 at 686). Furthermore, when a domicile of choice is abandoned, if a new domicile of choice is not acquired, the domicile of origin revives (para. 6-075 to 6-076).

[33]Finally, the testimony of an interested party as to his or her own intention is to be viewed with suspicion (para. 6-051). Nonetheless; “Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the persons to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared [intention].”: see Ross v Ross

[1930] AC 1

at 6-7 per Lord Buckmaster. In this context, the existence of a special motive underlying the stated intention of the party does not itself negative, and may indeed help, to establish the existence of such intention (para 6-055). In particular, the fact that a person’s motive for residence in a country is to institute matrimonial proceedings is not fatal to establishment of a change of domicile: see Drexel v Drexel

[1916] 1 Ch 251

[34]In relation to the domicile of the wife at the time of her petition, her evidence (which, save where otherwise stated or qualified, I accept) is to the following effect. Residence in fact

[35]Whatever the position in relation to the her habitual residence (see further below), it is her unchallenged evidence that she was physically resident in fact in the United Kingdom as from her return from Northern Ireland on the 2 February 2008, some 4 months prior to the filing of her petition and, from early March, she lived with DF. in C Street of which they were joint tenants. DF. returned to Egypt at the end of August 2008 following reconciliation with her husband, and the wife has continued to live in C Street with her son SM.. She has not left England since. It is thus clear that, at the time of presenting her second petition, the wife was resident in England. Intention of Permanent or Indefinite Residence

[36]It is the wife’s evidence that she has long since abandoned any intention of, or interest in, returning to live in Libya, her domicile of origin from which she departed in 1980. It is clear to me that, so far as she was concerned and, indeed, so far as the husband was concerned, when they came to England in 1980 together with their family, it was in order to settle in England long-term, where they believed they would be safe. The only reason they moved on to Egypt was for their physical safety and fear of violence from Libyan elements should they remain in England. When they moved to Egypt, the husband as a Libyan was unable to work and the family were unable to obtain other than temporary visas. Eventually, again, they did not feel secure as a result of the husband’s continuing political activity. Accordingly, they returned to England, which had always been their first choice of refuge, and applied for and were granted leave to remain. They acquired a fine house, large enough for all the family and were supported by the husband’s activities as a property developer.

[37]Since then, they have never returned to live in Libya and the entire family have acquired English nationality (save for the eldest three children who are German nationals). The wife has abandoned all connection with Libya (save that she has two sisters who still live there). Though she remained in possession of a Libyan passport for many years, she has not renewed it since its expiry. She stated in evidence, and I accept, that she no longer knows or wishes to know anything of Libya save what her sisters may tell her and that, if the regime were to change, she would not wish to return even for a visit, because her sisters are able to visit her here; she herself lacks any desire to revisit the place of her birth or scenes of her childhood.

[38]The question therefore becomes whether, (as the wife asserts) she has acquired and retains a domicile of choice in England; or whether (as the husband asserts), despite the wife’s abandonment of any intention to return to her domicile of origin from which she has been absent for 30 years, such domicile nonetheless clings to her on the basis that, as a wife and mother who over the years has focussed her interest upon the immediate welfare and the activities of her husband and children, she has(a) never formed or sustained an intention to settle in any other country than Libya or

(b) has acquired and still retains a domicile of choice in Egypt.

[39]As to that question, having heard and weighed the evidence of the wife and husband, and having taken into account the findings in the first divorce proceedings before Stephen Bellamy QC, I am satisfied that, when the family came to England in 1980, both parties intended that it should be not only a place of refuge but their future home and place of settlement at least so long as the then regime remained in place in Libya and that, had their residence become established in England, it would have qualified as their domicile of choice at that time. It was only the threat to their safety in England which drove them to Egypt as a second choice. Despite their prolonged presence there, it was less than satisfactory as a permanent home, not only because of their temporary (annually renewable) immigration status in Egypt, but because of the limitations placed upon the husband’s opportunities for employment or business activity.

[40]Whether or not the period and nature of the parties’ sojourn in Egypt between 1980 and 1990 was of a nature apt to render it their domicile of choice, their immigration status there was uncertain and it seems clear to me that, on their return to England in 1990 it became their intention, following the grant of indefinite leave to remain, that they would settle in England on a long term and indefinite basis, the husband intending (as he subsequently did) to buy a family home and establish a business in England, both parties applying for British nationality. Indeed, it is quite clear that in 1990 the entire family were engaged in a withdrawal from Egypt with a view to obtaining asylum and nationality elsewhere, the three eldest children going to Germany for that purpose and the rest of the family (parents and the younger children) to England. Thereafter, over a period of 10 years, the parties lived and established roots in England, acquiring nationality here and visiting Egypt only occasionally.

[41]It was only in 2001, and thereafter until 2006, that the focus of the wife’s interests switched back to Egypt for the reasons stated at paragraph 11 above. Whether or not it was the state of the husband’s intention or his long term plans that, despite retaining a home in England, he would now settle in Egypt rather than England, (and those plans and intentions were not explored in evidence before me), I am satisfied that, so far as the wife was concerned, she was not happy to be living in Egypt and, while she would always prioritise the needs of her husband and family, it was and has remained her personal wish to settle in England. When it was put to her that it was best for her to be in an Islamic country such as Egypt, she disagreed, saying that there was a large Islamic community in London in which she feels comfortable. Further, besides the presence of many members of her family, including the families of two of her sons, she has many Islamic friends here and she is a regular attendee at the Regent’s Park mosque. I accept that evidence as genuine and I am satisfied that, although, on the appropriate test for habitual residence, the wife was habitually resident in Egypt until her return to England in 2006, her long term desire and intention, both then and thereafter, was to remain based in England, albeit the needs of her children might take her elsewhere on a temporary basis.

[42]Whether or not that is so, however, it is plain that, on the break-up of the marriage in 2006, when the husband’s needs desires and interests no longer demanded the wife’s loyalty, and indeed moved into opposition to her own, a watershed was reached, not only in the relations of the parties but in the affairs and loyalties of the family as a whole. The husband asserts that, as soon as the wife obtains a divorce and a property settlement in England, she will leave England to live in Egypt or Northern Ireland. She had good reason to wish to base herself in England and to live here permanently as the country where she was happiest and where, once the interests of the husband were excluded, the centre of gravity of the family had shifted. If there were still then any reason to doubt her wish to settle in England for the rest of her life (and, as I have already indicated, I do not entertain such doubt) the wife made plain in her evidence, which again I accept, that were she to live in Egypt, she would tend to be disregarded in Egyptian society as a single woman divorced by her husband after 40 years of marriage whereas the same is not true of her existence here. Her position in this respect appears well set out in paragraph 5 of her sworn statement of 16 October 2008. It was confirmed by her in evidence and I accept it.

[43]The wife also set out in paragraphs 6 and 7 of her statement(a) the physical difficulties and discomfort she experiences in the heat of Egypt, as compared with the climate of London (she suffers from serious vertiligo) and

(b) her reliance on the support of SF. and SH. (who are firmly settled in London with their families) for both emotional support and assistance in relation to business, financial and administrative matters following the breakdown of her marriage. Her need for such support is likely to continue. These assertions were similarly unchallenged on behalf of the husband. Indeed, it has been his complaint that SF. and SH. have disloyally and unfairly supported the wife and worked against him ever since his relationship with a younger woman in Egypt became evident.

[44]It is clear to me that all these matters not only support the conclusion of Stephen Bellamy QC that, after September 2006, the wife became determined and focussed on remaining in England, but that at that time, whatever her previous state of mind or long term intentions, she was resolved to stay in England on a permanent and indefinite basis continuing her life and permanently residing in London, whatever visits to, or by, her non-London based family might be made.

[45]Despite the husband’s protestations and Mr Le Grice’s submissions to the contrary, there seems to me no good reason to doubt that such has been her genuine state of mind from the date of break-up. The case of the husband has depended not upon the advance of any reasoned or convincing case to the contrary, but upon the assertion that, as soon as the wife obtains a divorce and/or a property settlement in England, she will leave England to live in Egypt or Northern Ireland. He also makes a generalised assault on the wife’s credit in relation to her case on habitual residence, as to which he asserts she has presented a false and exaggerated case, by asserting her presence and/or residence in London during periods when she has in fact been in Northern Ireland or Egypt. The gravamen of the husband’s case on domicile has rested on the proposition that, because the wife has exaggerated the period(s) of time actually spent in England, she should not be believed as to her statements of intention for the future. Such an argument may be apt and plausible in many cases, but I do not consider it to be so in this case.

[46]I accept (see further below) that the wife’s case as to the extent and duration of her time spent in England as originally advanced in her sworn statements was inaccurate and exaggerated. However, I do not think hers was a deliberate and knowing misrepresentation of the position at the time it was made, but rather a product of wishful thinking in the absence of immediately available records. It may well also have been encouraged by a degree of “coaching” from members of the family, hostile to the case of the husband and alive to the need for any case based on habitual residence to be put as high as possible in the wake of the findings of Stephen Bellamy QC. However, in my view, that does not go to the nub of the matter on domicile which, as already indicated, depends on the wife’s actual residence and long term intentions as at May 2008.

[47]I have already indicated that in my view actual residence is satisfactorily established. As to the long term, I have well in mind the need to regard statements of intention as to the future with suspicion in a case of this kind; all the more so, if I consider that the wife’s recollection has been self-serving in relation to the issue of habitual residence. Nonetheless, given the family history as I have recounted it, and the wife’s situation following the end of her relationship with her husband, I find it inherently plausible rather than implausible that her long-term desire was to remain and settle in England as a British subject, well integrated into a substantial Islamic community, close to her London-based children, accessible for visits from her relatives abroad, and within easy reach of Northern Ireland. I reject the arguments of Mr Le Grice and find that the wife’s case on domicile is proved.

Habitual Residence

[48]That being so, I can deal with the issue of habitual residence shortly for the purposes of grounds (i) and (ii) of the wife’s assertion of jurisdiction set out at paragraph 2 above.

[49]As to ground (i), it is necessary for the wife to establish that she was residing in England for at least a year prior to 8 May 2008 i.e. since 8 May 2007. I am not so satisfied. At that date she had no established home of her own, living with either SF. or SH. during the short periods that she was in England, but for the most part being in Egypt attending to the needs of SM. and his family or in Northern Ireland. Although she acquired S. Gardens in July 2007 and occasionally lived there, it was only on an intermittent and infrequent basis. A good deal of time and evidence was spent on an attempt by the husband to prove that the flat was simply a front designed to assist her case and that she was never there. The caretaker of the block in which the flat was situated was called to say that he had never seen her. However, by reason of the geography of the flats, the situation of the caretaker’s office and the fact that the wife disposed of her own rubbish, this evidence was not persuasive. I find that the wife was at the flat on a number of occasions, but that, given that she was spending so much time in Egypt and Northern Ireland, she disposed of that flat in December 2007, only establishing her residence in London when she acquired the flat with DF. at C Street R.in early February 2008.

[50]As to ground (ii), while satisfied that the wife was domiciled in England, I am again not satisfied that she has established the requirement of 6 months residence prior to petition.

CONCLUSION ON JURISDICTION

[51]The wife is thus in the position that no court of any member state of the Community has jurisdiction pursuant to Article 3 of B II R and, under Article 7 (1), jurisdiction falls to be determined by the law of England. That being so, by reason of the wife’s domicile in England and Wales at the date of these proceedings, this Court enjoys jurisdiction over the proceedings under s.5 (2) (b) of the 1973 Act. The husband’s application that the petition be withdrawn for want of jurisdiction therefore fails. THE APPLICATION TO STAY

[52]So far as the application to stay is concerned, the husband, having commenced proceedings for divorce in Egypt, seeks a stay under the provisions of paragraph 9 (1) of Schedule 1 to the 1973 Act, in relation to which the principles to be applied are well known: see de Dampierre v de Dampierre

[1987] 2 FLR 300

. That decision makes clear that, while having regard to the wording of the statute (“the balance of fairness including convenience”) as between the parties to the marriage, the court should have regard to the authorities under the Court’s inherent jurisdiction to grant a stay on the principle of forum conveniens as elucidated in the Spiliada case

[1987] AC 460

; see also Butler v Butler

[1997] 2 FLR 321

at 330.

[53]That said, it seems to me clear that, if the husband is to satisfy me that the balance of fairness is in favour of Egypt as the forum for the divorce proceedings between these parties, it is incumbent upon him to establish that on the balance of probabilities the Egyptian court has jurisdiction to hear the proceedings. In that respect, I consider that he falls at the first hurdle.

[54]There is clear expert evidence before the Court as to the position of the parties in Egyptian law and, in particular, the extent to which the Egyptian Family Court enjoys and/or would exercise jurisdiction in divorce proceedings brought by the husband in Egypt. It is the evidence of Mr Edge, an expert in Egyptian and Islamic law, jointly instructed by the parties in the first divorce proceedings. Shortly stated, the position as set out in his reports and confirmed in his oral evidence, is as follows:

[55]Article 13 (2) of the Egyptian Civil Code provides that, in matters of divorce, the Egyptian courts apply the law of nationality of the husband. Since the husband in this case is a non-Egyptian dual national, that law would either be Libyan law or English law. In the opinion of Mr Edge, the Egyptian court would be likely to apply Libyan law on the grounds that the marriage is a Libyan marriage between Muslims.

[56]Whereas it is open to the husband as a non-Egyptian national, if present and resident or domiciled in Egypt, to commence an action in the Egyptian courts by issue of the appropriate court proceedings, if the defendant (i.e. the wife) is a non-Egyptian then the Egyptian court will only assume jurisdiction in certain limited instances or categories provided for in Articles 29 and 30 of the Procedure Code. Article 29 of the Procedure Code provides that the Egyptian Court has jurisdiction over a foreign defendant who has a domicile, or an official or certified place of residence, in Egypt. The wife does not. Article 30 provides that the Egyptian Court also has jurisdiction over a foreign defendant who does not have such domicile or place of residence in Egypt in one of nine specific instances or categories, none of which is applicable to the circumstances of this case.

[57]Finally, Article 32 of the Procedure Code provides that the Egyptian Court may exercise jurisdiction outside the categories provided for in the Rules above mentioned, but only where the defendant accepts the competence of the Egyptian Courts. The wife has not done so in this case.

[58]Reverting to Article 29, the relevant issue in this case in respect of proceedings started by the husband as a non-Egyptian, would be whether or not the wife would be considered as domiciled or having a place of residence in Egypt. Mr Edge states that, as the wife has left Egypt, apparently never intending to return, she would not be considered to be domiciled or resident in Egypt under Egyptian law. Thus the Egyptian Court would have no foundation to exercise jurisdiction based upon Article 29.

[59]Mr Edge goes on to state that if he is wrong (which he is sure he is not) Egyptian courts also apply a doctrine of forum non conveniens which might in any event be applied in respect of divorce proceedings started by the husband in Egypt, given that the marriage of the parties took place in Libya and both are Libyan nationals, each apparently having dual nationality, either Libyan or English. In these circumstances, Mr Hedge states that the Egyptian Courts would be likely to refuse to exercise jurisdiction in any event.

[60]The position so far as the history of the proceedings in Egypt is concerned has emerged only slowly in the course of these proceedings, the process of discovery in that respect having been one of sustained pressure on the wife’s behalf in the face of slow and apparently reluctant compliance by the husband. The position as it has eventually emerged is as follows.

[61]As already noted at paragraph 21 above, on 31 January 2008, despite the fact that the proceedings for dismissal of the wife’s first petition were still current before Stephen Bellamy QC, the husband commenced divorce proceedings (case 73/2008) in the Heliopolis Family Court in North Cairo by a petition seeking a unilateral talaq, a form of divorce effected by a declaration of talaq before witnesses in the office of the registrar of marriages and divorces (the Ma’athun). If the declaration is recorded, it produces a divorce which is open to revocation during the subsequent 3 months, maintenance being paid during that period to the wife. A hearing date was set for those proceedings on 1 March 2008, subsequently adjourned to 26 April 2008, when the court made an order striking out the application. The order does not make clear the reason why the case was struck out. The husband has stated that it was withdrawn because his lawyer disobeyed his instructions and brought proceedings of the wrong type. Whether or not that is so – and in this respect I record that I have found the assertions of the husband in respect of the Egyptian proceedings generally difficult to follow, evasive and unreliable – a further court document makes clear that the Ma’athun refused the husband’s application, requiring him to seek the assistance of the court. Mr Edge expresses the view that this could only have been because the Ma’athun thought that there might be jurisdictional and/or Conflict of Law problems.

[62]Prior to the striking out of case 7XX/2008, in April 2008 the husband recommenced divorce proceedings (case 3XX/2008) in the Nasr City Family Court. This was an application for a non-revocable talaq by a more elaborate procedure in which the husband set out various reasons to avoid the provision of Egyptian law that, if the wife is blameless, the court may award her up to the equivalent of two years maintenance. The position is that these proceedings are still pending, having been adjourned on several occasions, the Egyptian Court having called for the details of the wife’s movements and evidence of Libyan law which would be applicable in accordance with the Conflict of Laws provisions of the Egyptian Civil Code if the husband refers to himself as a Libyan national.

[63]In May 2008, the husband started a third set of divorce proceedings (case 5XX/2008) in the Nasr City Court for a Kaqla, a form of divorce in which the wife gives up certain financial rights in respect of her dower and her entitlement to maintenance in return for the husband providing a single (irrevocable) talaq. It does not appear that any proceedings of substance have taken place, the respondent having stated in his affidavit of 12 January 2009 that the matter stood adjourned to 15 January 2009.

[64]On 21 July 2008 the wife obtained an anti-suit injunction in this Court requiring the husband to take all necessary steps to adjourn any divorce proceedings in Egypt and to take no further steps to progress such proceedings or to commence further divorce proceedings until the disposal of these applications. The Egyptian divorce proceedings have thus proceeded no further.

[65]For completeness, I mention further Egyptian proceedings begun by the husband in April 2008 in respect of certain forms of conditional “donation agreements” entered in to by the husband in 2005, granting the wife rights in respect of those properties referred to in paragraph 10 above, from which agreements the husband now applies to be released by the Egyptian court. The validity of the original agreements is questionable and it does not appear that any step of significance has taken place in relation to the court proceedings which the husband states now stand adjourned.

[66]In the course of his oral evidence, Mr Edge reiterated the view stated in his reports that in the light of the wife’s absence from Egypt since mid-2007 the courts of Egypt lack jurisdiction for the reasons already stated. Such opinion was entirely undisturbed by the cross-examination of Mr Le Grice QC who, indeed, did not seek to explore in detail with Dr Edge any provisions of the Egyptian Civil Code which might suggest otherwise. In those circumstances, it seems to me that the application for a stay is doomed to failure.

[67]However, I would add that, were I to proceed to consider the matter on the merits, on the basis that the Egyptian Courts do indeed enjoy jurisdiction in the matter, I would have no hesitation in finding that the balance of fairness and convenience favours the hearing of the divorce proceedings in this country. The parties are British citizens and, indeed, the husband has informed the Egyptian courts that he is of British nationality and produced his British passport to establish his identity. Despite two substantial periods of residence in Egypt, neither party has, or has ever had, indefinite leave to remain in Egypt; nor has the wife any residence permit. The husband has homes in England (at S. Hill, London NW7) as well as in Cairo. The preponderance of the parties assets are here in England. The family home at A. Avenue, retained throughout the period from 1993 to 2007 has now been sold and the proceeds of the sale are located here in London as well as two substantial business premises owned by the husband through his property company in England which makes returns to Companies House and the Inland Revenue. His assets are the subject of a freezing order. The wife is domiciled and now habitually resident in England where she lives in a flat and will no doubt purchase something more spacious following the disposal of ancillary relief proceedings in this country.

[68]I do not think it would be fair or convenient for the wife to have to litigate in Egypt where there is, at the very least, doubt about jurisdiction and it seems Libyan law would be applicable. Mr Edge expressed his opinion that the Egyptian Courts move very slowly and it is likely to be “many years” before the question of jurisdiction is resolved. Finally, if the Egyptian court hears the matter and applies Libyan law, according to the evidence of Mr Edge, the wife’s entitlement to financial provision, as compared with her position in England, is meagre indeed. In this respect, Libyan law (with which Mr Edge is also familiar) is somewhat more generous than Egyptian law where the wife’s maintenance prospects are limited to a two year maximum of periodical payment at Egyptian rates. The maximum in Libya is five years. In any event, there is no power to make a property adjustment order in favour of the wife in a situation where, as here, the ownership of the parties’ assets resides almost solely in the husband, subject to the dubious validity of the Egyptian donation agreements, the terms of which are in any event those of conditional gift and heavily fettered as to the wife’s rights of disposal and enjoyment.

[69]Invited both in correspondence and the course of his evidence to put flesh upon his assertion that, if the proceedings are dealt with in Egypt, he is prepared to be generous to the wife, the husband signally failed to do so. It is apparent that, if the matter were to proceed in Egypt rather than this country, the wife would be completely at the mercy of such generosity as the husband would be prepared to display. In the light of the bitterness with which the wife’s proceedings are being resisted and the determination of the husband to take every point to defeat a hearing in this country, I do not consider that his protestations can be relied on. CONCLUSION ON

THE APPLICATION TO STAY

[70]For the reasons above stated, the husband’s application for a stay of proceedings is refused.