Marinos v Marinos

Factual and Procedural Background

The case concerns jurisdiction under Article 3 of Council Regulation (EC) No 2201/2203 ("Brussels II (revised)") relating to divorce proceedings. The parties are a husband of Greek nationality and a wife of English nationality. They married in the country in 1992 and have two children born there. The family moved to Greece in late 2002, initially for a trial period, with the wife and children returning to the country on 31 January 2007. The wife issued a petition for divorce in the Principal Registry the following day, asserting jurisdiction based on her domicile and habitual residence in the country.

The husband disputed jurisdiction on the basis that both parties were domiciled and habitually resident in Greece. Concurrent proceedings related to the children under the Hague Convention and divorce proceedings in Greece were ongoing. The court heard oral evidence and submissions from both parties and reserved judgment.

Legal Issues Presented

1. Whether the wife was habitually resident in the country on 1 February 2007 for the purposes of Article 3(1)(a) of Brussels II (revised).
2. Whether the wife had resided in the country for at least six months immediately prior to the presentation of the divorce petition.
3. Whether a person can be habitually resident in more than one Member State simultaneously under the Regulation.
4. The distinction, if any, between being "habitually resident" and having "resided" in a Member State as used in Article 3(1)(a).

Arguments of the Parties

Appellant's Arguments (Husband)

• The matrimonial home and family life were based in Greece from December 2002 until the wife and children left in January 2007.
• The wife spent at least as much time in Greece as in the country.
• The wife used a Greek address for official purposes and had a bank account in Greece.
• The wife was non-resident for income tax purposes in the country.
• Changes in the wife’s employment contract and steps to reoccupy property in the country occurred after the relevant six-month period and cannot establish habitual residence.
• It is inherently unlikely the wife was habitually resident in the country if the children were habitually resident in Greece, especially as she was their primary carer.
• There were inconsistencies in the wife’s affidavits and evidence regarding her residence status.

Appellee's Arguments (Wife)

• The wife has always been habitually resident in the country or, alternatively, has been habitually resident there since at least 1 August 2006.
• Even if not habitually resident before 1 February 2007, she had reacquired habitual residence by that date and had resided in the country for at least six months prior.
• The move to Greece was temporary; the wife never intended to move her centre of interests there.
• The parties retained properties and other ties in the country, including a room in her parents’ house and financial arrangements.
• The wife was in stable employment in the country throughout and pursued legal studies there with the intention to practice law in the country.
• The wife maintained medical registrations, a UK mobile phone, and other personal ties in the country.
• The wife contends that the centre of her interests remained in the country despite the children living in Greece.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that "habitual residence" under Article 3 of Brussels II (revised) has an autonomous meaning derived from European Court of Justice (ECJ) jurisprudence, not necessarily identical to domestic law concepts. The court reviewed ECJ case law and the Explanatory Report of the Regulation, concluding that habitual residence is the place where a person has established, on a fixed basis, the permanent or habitual centre of their interests, assessed qualitatively rather than purely quantitatively.

The court rejected the argument that a person can be habitually resident in two Member States simultaneously for purposes of the Regulation, reasoning that the language of the Regulation refers to "the Member State" in the singular and ECJ case law supports a single habitual residence at any given time.

Regarding the distinction between being "habitually resident" and having "resided" in a Member State, the court found that the Regulation deliberately distinguishes these concepts. Habitual residence must exist on the date of application, while residence during the preceding period need not be habitual. This interpretation is supported by ECJ case law recognizing possible residence in multiple countries but only one habitual residence.

On the facts, the court found the wife had significant ties to both countries from 2004 to 2007, including family life in Greece and employment and education in the country. The wife was resident in both countries during this period, but the court was required to identify a single habitual residence for the purpose of jurisdiction.

After careful balancing, the court concluded that the wife’s habitual residence was the country from at least September 2004, based on the overall centre of her interests being there, particularly her employment and future career plans, despite the family home being in Greece. Furthermore, the court held that upon her return on 31 January 2007, the wife acquired habitual residence in the country immediately, consistent with Community law allowing rapid acquisition of habitual residence in the context of a permanent relocation.

Holding and Implications

The court held that the English court has jurisdiction under Article 3 of Brussels II (revised) to hear the divorce petition, as the wife was habitually resident in the country on 1 February 2007 and had resided there for at least six months prior.

HOLDING: The court found jurisdiction vested in the English court, which as the court first seised, has priority over the Greek court.

Implications: The decision confirms the autonomous and qualitative nature of the habitual residence test under Brussels II (revised), clarifies that habitual residence for jurisdictional purposes is singular, and distinguishes habitual residence from mere residence. It underscores that habitual residence can be acquired quickly upon permanent relocation. The ruling applies to the parties only and does not establish new precedent beyond the interpretation of the Regulation in the given facts.