Factual and Procedural Background
The Appellant and Respondent, both nationals of The State, were married in 1979 in accordance with local customary law. They subsequently lived in various countries before establishing a home in The City. Four children were born, two of whom later acquired citizenship of The Country.
In 1998 the Appellant returned to The State to pursue a political career while the Respondent remained in The City. Her limited leave to remain expired on 30 April 1998, rendering her presence an offence under the Immigration Act 1971. She nevertheless formed an intention to remain indefinitely.
On 17 July 2000 the Respondent petitioned for divorce and ancillary relief in the Family Division, asserting jurisdiction on the basis of 12 months’ habitual residence and, alternatively, domicile of choice. The Appellant initially admitted jurisdiction but later sought a stay in favour of proceedings in The State. Judge Hughes refused the stay in March 2002 and, in August 2002, held that although the Respondent’s habitual residence could not be founded on unlawful presence, she had acquired a domicile of choice. The Court of Appeal affirmed, finding both habitual residence and domicile established. The Appellant appealed to the House of Lords.
Legal Issues Presented
- Whether unlawful presence in the United Kingdom prevents a person from being “habitually resident” under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.
- Whether unlawful presence prevents the acquisition of a domicile of choice in the United Kingdom.
- Consequently, whether the English courts had jurisdiction to entertain the Respondent’s divorce petition.
Arguments of the Parties
Appellant's Arguments
- The Respondent’s presence was criminal under the Immigration Act 1971; unlawful residence cannot establish habitual residence or domicile of choice.
- Jurisdiction therefore lay in The State, where parallel matrimonial proceedings had commenced.
Respondent's Arguments
- Habitual residence is a factual question; legality is not an implicit statutory requirement in section 5(2).
- Domicile of choice depends on residence plus animus manendi; unlawful presence does not negate physical residence or genuine intention to remain.
- The English forum was the most appropriate venue, as previously determined by the court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Udny v Udny (1869) | Distinction between public-law status and private-law domicile. | Supported the view that domicile rules should be universal and not tied to immigration legality. |
| Bell v Kennedy (1868) | Domicile of choice arises on arrival with requisite intention. | Cited to show illegality does not affect physical presence. |
| Ex parte Donelly (1915) | Deportation may extinguish domicile. | Discussed but distinguished; concerned loss, not acquisition, of domicile. |
| Ex parte Gordon (1937) | Same principle as Donelly. | Distinguished; acquisition question different. |
| Solomon v Solomon (1912) | Unlawful residence bars domicile of choice. | Not followed; court declined to adopt this reasoning. |
| Puttick v Attorney-General [1980] | Illegality bars domicile of choice (obiter). | Overruled in principle; illegality regarded as factual, not determinative. |
| Szechter v Szechter [1971] | Domicile despite limited leave. | Affirmed that precarious but lawful residence can found domicile. |
| Boldrini v Boldrini and Martini [1932] | Limited leave does not preclude domicile. | Relied on to analogise unlawful with precarious residence. |
| Cruh v Cruh [1945] | Domicile persists until actual deportation. | Used to illustrate that removal, not illegality, ends domicile. |
| R v Barnet LBC, ex p Nilish Shah [1983] | Definition of ordinary residence; legality irrelevant except where unlawful. | Examined to delineate when “lawful” may be implied; distinguished. |
| Levene v IRC [1928] | Ordinary residence is factual. | Foundation for habitual residence test. |
| Lysaght v IRC [1928] | Same as Levene. | Part of habitual residence analysis. |
| In re Abdul Manan [1971] | Residence must be lawful for immigration rights. | Demonstrated statute-specific requirement; not general. |
| Ex p Margueritte [1983] | Ordinary residence excludes unlawful presence in nationality context. | Again distinguished as statute-specific. |
| Ikimi v Ikimi [2001]/[2002] | Equivalence of habitual and ordinary residence. | Cited to apply habitual residence principles. |
| May v May [1943] | Domicile possible despite limited leave. | Supported Respondent’s position. |
| Zanelli v Zanelli (1948) | Similar to May v May. | Reinforced precedent on precarious residence. |
| Smith v Smith (1962) | Illegality prevents forming animus manendi. | Rejected by House; not followed. |
| Parker v Principal Immigration Officer [1926] | Domicile under statutory immigration concept. | Distinguished. |
| Ex parte Macleod [1946] | Deportation destroys domicile. | Discussed as loss-of-domicile scenario. |
| Jablonowski v Jablonowski (1972) | Domicile possible despite illegality. | Considered persuasive; aligned with final holding. |
| Wood v Wood (1977) | Followed Jablonowski. | Reinforced acceptance of domicile despite illegality. |
| Lim v Lim and Titcomb [1973] | Temporary permits and domicile. | Illustrated fluctuating immigration status. |
| In the Marriage of Salacup (1993) | Similar to Lim. | Used to show practical issues with legality requirement. |
Court's Reasoning and Analysis
Habitual Residence: The House adopted the test in Shah, emphasising that habitual residence is a factual concept dependent on “ordinary residence” factors. Section 5(2) of the 1973 Act contains no express requirement of lawful presence, and none should be implied. While illegality may bear on whether residence is in fact “habitual” (for instance, where a person is actively evading authorities), it is not legally dispositive. The Respondent’s continuous, open and settled life in The City satisfied the factual test.
Domicile of Choice: Domicile requires (1) residence and (2) an intention to reside indefinitely (animus manendi). Illegality does not negate physical presence, and the requisite intention can exist notwithstanding precarious immigration status. Earlier authorities barring domicile due to illegality were distinguished or rejected as conflating public-law considerations with private-law status. The House confirmed that only actual deportation or departure would displace a domicile of choice, not the mere potential for removal.
The speeches further clarified that conflating immigration control (public law) with private-law connecting factors would undermine the universal application of domicile rules.
Holding and Implications
HOLDING: Appeal DISMISSED.
The House of Lords affirmed that unlawful presence does not per se prevent a person from (a) being habitually resident or (b) acquiring a domicile of choice in England and Wales. Consequently, the English courts possessed jurisdiction over the Respondent’s divorce petition.
Implications: The decision clarifies that, absent express statutory language, legality of residence is not a prerequisite for habitual residence or domicile of choice. This ruling preserves access to English courts for status and family-law matters where parties have a genuine and substantial connection with the jurisdiction, even if immigration status is irregular. No new statutory rule was created, but prior authorities to the contrary (e.g., Solomon, Smith, and certain dicta in Puttick) are effectively disapproved.