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Judgments - Mark (Respondent) v. Mark (Appellant)


SESSION 2005-06
[2005] UKHL 42
on appeal from: [2003] EWCA Civ 168

for judgment IN THE CAUSE

Mark (Respondent)
Mark (Appellant)

Appellate Committee

Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Hope of Craighead
Lord Phillips of Worth Matravers
Baroness Hale of Richmond


Charles Howard QC
Philip Marshall
Deepak Nagpal
(instructed by Hughes Fowler Carruthers)

Chima Umezuruike
Adedamola Aderemi
Razak Atunwa
(instructed by Osibanjo & Co)

Queen’s Proctor

Michael Nicholls
(instructed by Treasury Solicitor)

Hearing dates:
23-24 May 2005

Thursday 30 June 2005




Mark (Respondent) v. Mark (Appellant)

[2005] UKHL 42


    1.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Baroness Hale of Richmond. For the reasons they give, with which I agree, I would dismiss this appeal.


    2.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I would dismiss this appeal.


My Lords,

    3.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons that she gives I would dismiss the appeal. I should like however to add a few comments of my own on the question whether, if a domicile of choice is to be acquired, a person must be lawfully present in the country where he or she intends to remain indefinitely.

    4.  The answer to this question is, I think, to be found in the distinction to which Lord Westbury drew attention at the start of his speech in Udny v Udny (1869) LR 1 Sc & Div 441, 457:

    "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy, must depend."

    5.  Translated into language with which we are familiar today, the point that Lord Westbury was making was that cases where a question of public law is in issue must be distinguished from cases where the issue is one of private law. Public law issues raise questions which concern what Lord Westbury described as the person's political status. The criteria by which status for the purpose of these questions is to be judged may differ from country to country, according to the rules that it lays down as to who may lawfully enter or lawfully remain there. Private law issues, on the other hand, are referred to the law of the person's domicile. The criteria for the determination of a person's domicile are governed by a single principle which ought to be capable of being applied universally. The importance of this distinction has not always been recognised.

    6.  As Mr Nicholls for the Queen's Proctor observed in his written case, the proposition that to acquire a domicile of choice a person must be lawfully present in the country with the intention of remaining indefinitely can be traced back to the Roman jurists. In Ex parte Donelly, 1915 WLD 29, a husband had been convicted of drugs offences in South Africa and after serving a period of imprisonment was deported to the United States of America. The wife then applied in South Africa for leave to sue her husband for restitution of conjugal rights or for divorce. Holding that the court had no jurisdiction, Mason J said at p 30:

    "A person, it is true, may select any place he likes as his domicile, provided, says the Digest (50, 1, 31), it has not been prohibited for him.

    Now in the present case the husband cannot have a true domicile in fact in South Africa; he is liable to instant punishment and deportation if he returns."

The decision in that case was followed, on similar facts, in Ex parte Gordon, 1937 WLD 35. In these two cases it was held that the effect of the husband's deportation was to extinguish his domicile of origin. But the line of reasoning that was adopted would have prevented a domicile of choice from being acquired in the first place if the person was unable to enter the country lawfully: see Solomon v Solomon (1912) 29 WN(NSW) 68 in which was held that unlawful residence in New South Wales prevented the acquisition of a domicile of choice there.

    7.  The Digest 50, 1, 31, in a fragment attributed to Marcellus, does indeed state:

    "Nihil est impedimento, quo minus quis ubi velit habeat domicilium, quod ei interdictum non sit. [There is no restriction on the place where a person may have his domicilium, so long as it is not prohibited for him.]"

But it is much less clear whether, when Marcellus used the word domicilium in this passage, he was talking about what Lord Westbury described as the person's civil law status, which is the private law context in which we now use the expression "domicile".

    8.  The chapter of the Digest in which the fragment appears is headed "Ad municipalem et de incolis". A municipium in Roman law was a town, particularly a town in Italy, which possessed the right of Roman citizenship but was governed by its own laws. Chapter 50 deals with the rights of persons resident in a municipium and describes the rules by which it was determined whether a person had a domicilium there. As for incolae, the following definition is provided: Incola est, qui in aliqua regione domicilium suum contulit, quem Graeci appellant. [An incola is a person who has taken up his domicilum in a place, whom the Greeks call a .]: Digest, 50, 16, 239. The Greek word was regarded by Justinian as having the same meaning as the Latin word colonus: Justinian, 1, 34, 1. As Buckland, A Textbook of Roman Law, 3rd ed (1963) p 86, note 14 explains, persons resident in a community had widely different civil rights from the point of view of civitas according to their classification in society. These rights included the use of public facilities such as baths, and the right to invoke the civil jurisdiction of the magistrate. Leaving aside those residents who because they were cives were specially privileged, there were various other classes of residents such as coloni, or incolae, whose rights were more or less restricted according to the class in which the person was placed. These disabilities related to matters of public as well as private law. Persons resident in the Latin colonies, for example, were on a level with Romans in the ordinary relations of private law, but they could not serve in Roman legions or hold a Roman magistracy: Buckland, pp 92-93.

    9.  It would not be surprising to find that there was a rule in Roman law that a person had to be lawfully resident in the community before he could acquire a domicilium there, as the law did not distinguish between the public and the private law consequences of his presence in the community. But I think that the concept embraced by the word domicilium in Roman law is more accurately reflected today, as it is in civilian jurisdictions, by the words "home" or "residence" than by the word "domicile". The word "home" in article 8(1) of the European Convention for the Protection of Fundamental Rights and Freedoms, for example, is expressed in other languages as "suo domicile", "proprio domicile" and "suo domicilio". With us the word "domicile" has acquired a narrower meaning. It refers to what Lord Westbury described as a person's civil status for the purpose of determining various rights in private law.

    10.  In Puttick v Attorney-General [1980] Fam 1 the petitioner had been permitted to enter the United Kingdom. She sought a declaration that a marriage which she had celebrated following her arrival in this country was a valid and subsisting marriage, as she had acquired a domicile of choice in England. Sir George Baker P held that, as her leave to enter had been obtained by the fraudulent production of an invalid passport, she was barred from acquiring a domicile of choice here. At p 19C-D he cited, in support of this view, the following passage in Dicey & Morris, The Conflict of Laws, 9th ed (1973), p 96:

    "It has been held that a domicile of choice cannot be acquired by illegal residence. The reason for this rule is that a court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers."

    11.  This passage has been retained in the current edition: Dicey & Morris, The Conflict of Laws, 13th ed (2000), Vol 1, para 6-037. The editors cite Puttick as authority for it, as well as cases from Australia and South Africa. As Anton and Beaumont, Private International Law, 2nd ed (Edinburgh, 1990), point out, at p 140, however, these propositions are perfectly understandable where the issue is one of public law. But they find no similar justification in matters of private law. Dicey & Morris, para 6-037, states that it is an open question whether the courts of one country would hold that a person could acquire a domicile of choice in some other country by residence there which was illegal under the law of the second country. The better view would seem to be that, as our courts do not apply the public policy of a foreign state, the illegality of the residence under that state's law would not be regarded here as inconsistent with the acquisition of a domicile of choice in that country.

    12.  In Szechter (orse Karsov) v Szechter [1971] P 286, Sir Jocelyn Simon P held that the parties, who had been given leave to stay in the United Kingdom for a limited period, had acquired a domicile of choice in England by residing here with the intention of making this country their permanent home. Following Boldrini v Boldrini and Martini [1932] P 9 and Cruh v Cruh [1945] 2 All ER 545, he said at p 294-G that it was immaterial that their intentions were liable to be frustrated by the decision of the Secretary of State for the Home Department as to permission for their continued residence here. This is a clear indication that, under our law, a domicile of choice is not lost if the residence becomes unlawful at some later date.

    13.  In my opinion illegality is relevant to the question whether the person intended to reside in a country with the intention of remaining there indefinitely, but not to the question whether the person is present here. Evidence that the person intended to reside there indefinitely despite the illegality would need to be carefully scrutinised. But the question whether a person is physically present in the country is not affected one way or the other by the question whether he has entered the country legally or illegally. If the court finds that the requisite intention has been established by credible and reliable evidence, it would seem to be contrary to principle to decline to give effect to it by recognising that a domicile of choice has been acquired, as Lord Westbury put in Bell v Kennedy (1868) LR 1 Sc & Div 307, 320, immediately upon the person's arrival in that country.


My Lords,

    14.  I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Baroness Hale of Richmond. I agree with their reasoning in relation both to ordinary residence and to domicile and, for the reasons which they give, I would also dismiss this appeal.


My Lords,

    15.  The issue before us is whether a person can be either habitually resident or domiciled in England and Wales if her presence in the United Kingdom is a criminal offence under the Immigration Act 1971. The immediate context is whether our courts have jurisdiction, under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, to entertain her divorce petition. But the domicile issue could arise in many other contexts, as a person can only have one domicile, whereas habitual residence may have a different meaning in different statutes according to their context and purpose.

Immigration control

    16.  It is worth remembering that the question could not arise until comparatively recently. As Ann Dummett and Andrew Nicol explain in Subjects, Citizens, Aliens and Others (1990), pp 39 - 40,

    "It is taken for granted today that any state's system of immigration control is permanent and universal. That is, a permanent legal framework exists for scrutinising all entrants and for determining which of them may stay, for how long, and under what conditions. . . Such permanent, universal control over immigration is of recent origin only. It would have been unthinkable in early twentieth century Britain; for one thing, it would have been regarded as a gross invasion of personal freedom; for another, it would have been physically impossible to enforce. Passports were not yet a general requirement. Modern controls depend upon universal documentation, telecommunications, a large bureaucracy, and greater powers to invade people's privacy within the country than then existed."

    17.  Monarchs did from time to time seek to expel or exclude aliens, although whether this was an aspect of the royal prerogative is disputed. Blackstone put it this way (Commentaries on the Laws of England, vol 1, 2nd ed (1766) p 259): "For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the King's protection; though liable to be sent home whenever the King sees occasion." From time to time, temporary legislation was passed to meet a temporary crisis. Lord Grenville's Aliens Act of 1793 was passed in response to the excesses of the French revolution. This sought to identify aliens on arrival, prohibit some from landing, and provided the machinery for removing those who were ordered to leave. It was renewed until replaced by further legislation in 1802 and again in 1803 which concentrated on identifying and removing aliens rather than prohibiting landing. This was to last until there was a peace treaty. In 1814 and again in 1815 Parliament reverted to legislation which had to be renewed from time to time. By 1826, the country must have felt sufficiently secure to replace the machinery for removal with a permanent system of registration. But after the French Revolution of 1848, it was once again thought expedient 'for the due Security of the Peace and Tranquillity of this Realm' to resort, for a limited period, to the earlier machinery for ordering aliens to depart: see Aliens Act 1848. But the Crown also reserved the right to refuse to return aliens to their own countries if they would face persecution there. The calls for permanent controls on entry began towards the end of the 19th century in response to the arrival of large numbers of Jewish people escaping the pogroms in Eastern Europe. These culminated in the recommendations of the Royal Commission on Alien Immigration, 1903, Cd 1741. These were highly controversial and emerged, much watered down, in the Aliens Act 1905. This contained powers to refuse entry to, and to deport, defined types of 'undesirable' aliens. Immigration inspectors, the forerunners of the modern immigration service, were appointed to do this. But the Act was comparatively easily evaded. The Aliens Restriction Act 1914 was rushed through the day after war was declared, allowing Orders in Council to be made imposing much more severe controls over all aliens in times of war, imminent national danger or great emergency. After the war, however, it was continued and extended by the Aliens Restriction (Amendment) Act 1919, which also repealed the 1905 Act. It was renewed annually until superseded by the Immigration Act 1971.

    18.  The Aliens Acts did not apply to the inhabitants of the British Empire. They were not aliens. Mostly they were British subjects owing allegiance to the Crown, although the British Nationality Act 1948 drew a distinction between Citizens of the United Kingdom and Colonies and citizens of the independent members of the Commonwealth. All were entitled to come here freely until the first Commonwealth Immigrants Act of 1962. This regulated the entry of Commonwealth citizens coming here for a variety of purposes. The main effect was to restrict the numbers coming here to work; family reunion was still allowed. During the 1960s, entry clearance officers were established in Commonwealth countries to process dependants' applications for entry and under the Immigration Appeals Act 1969, prior entry clearance became a legal requirement. The Commonwealth Immigrants Act 1968 extended controls to United Kingdom citizens unless they, a parent or grandparent had been born here. The 1962 Act made it an offence for a Commonwealth citizen subject to immigration control to enter or remain within the United Kingdom without the leave of an immigration officer.

    19.  The Immigration Act 1971 brought everyone under the same system of control. It abolished the distinction between aliens and British subjects and introduced the distinction between patrials with the right of abode, who were not subject to immigration control, and non-patrials who were subject to immigration control. Under section 24 of the 1971 Act a person commits a criminal offence, among other things, "if, having only a limited leave to enter or remain in the United Kingdom, he knowingly either - (i) remains beyond the time limited by the leave; or (ii) fails to observe a condition of the leave" (s 24(1)(b)).

This case

    20.  The parties are both Nigerian nationals, born in Nigeria in 1948 and 1950 respectively, and thus having a domicile of origin in Nigeria. They were married according to the local customary law in the River State of Nigeria in 1979. This was a valid polygamous marriage, the husband having married two or possibly three wives before this one, and possibly two afterwards. This couple have four children, David, born in 1980, Katie, born in 1982, Monica, born in 1984, and Christopher, born in 1985. All four children were born here. The two eldest, being born before the British Nationality Act 1981 came into force, are United Kingdom citizens with British passports. The two youngest were originally Nigerian citizens, but were granted British citizenship in 2000. All four children began their education in Switzerland, but were mainly educated at boarding schools and Universities or colleges here. They spent their holidays either in London or Nigeria or in other places abroad.

    21.  The husband had a distinguished career in the Nigerian army, rising to the rank of General, and occupying a variety of government posts after the military coup in 1983. He amassed a very considerable fortune during this period. In 1990 he was posted to Washington. The wife had qualified as a lawyer and practised in Nigeria. When the husband was posted to Washington she enrolled for an LL.M. at Queen Mary College in London, thereafter dividing her time between this country, visits to her husband in the United States, and to Nigeria. She was granted multiple entry visas which allowed her to enter this country for periods of up to six months at a time until March 1997.

    22.  In November 1993, there was a further military coup in Nigeria, and the husband was opposed to the new ruler, General Abacha. He was compulsorily retired from the army and went into exile in this country. The parties established a matrimonial home here. In April 1994, the husband was granted a four year work permit expiring on 30 April 1998 and given leave to remain here until that date. The wife at first relied upon her multiple entry visa to come and go, but was eventually given limited leave to remain until 30 April 1998 as the dependent spouse of a work permit holder. Shortly before that date, the husband applied for and was granted indefinite leave to remain for himself and the two youngest children. At the time, the wife was in Florida attending a bible study course and she was not included in the application. She returned on 29 April and was given leave to enter for one day, until her limited leave expired on 30 April. After that she became an over-stayer and her continued presence here was an offence under sections 24(1)(b) and 24A of the Immigration Act 1971. She has since been granted indefinite leave to remain but only after these proceedings were begun.

    23.  General Abacha died in June 1998 and the husband decided to return to Nigeria to take up a political career. He did so in September 1998 and soon became a Senator in the Upper House of the Nigerian Parliament. He continues to visit this country and to stay in the former matrimonial home where the wife still lives. At some time over the following year, the wife abandoned any hope of returning to Nigeria as the husband's principal wife and formed the intention of remaining indefinitely in this country.

    24.  On 17 July 2000, at the invitation of the husband's solicitor, the wife issued a divorce petition and application for ancillary relief in the Principal Registry of the Family Division. At that date she relied only upon her habitual residence here over the previous 12 months to found the jurisdiction of the court, but her petition was later amended to include a claim that she had acquired a domicile of choice here. The husband initially admitted that the English court had jurisdiction, but in February 2001 he applied for a stay of the English proceedings on the basis that he had initiated proceedings in Nigeria. This application eventually came before Hughes J in March 2002. He dismissed it in a reserved judgment dated 14 March 2002. Thus, provided that the English court has jurisdiction, it is appropriate for that court to exercise it.

    25.  By that time, however, the husband had taken the point that the court did not have jurisdiction because the wife's presence here during the 12 months up to and including the issue of her petition had been unlawful. The issue was tried by Hughes J in June 2002. In a reserved judgment dated 14 August 2002, he held that the wife could not rely upon her unlawful presence as a basis for establishing habitual residence here but that she could rely upon it as a basis for the acquisition of a domicile of choice. Accordingly the court had jurisdiction. On 19 February 2004, the Court of Appeal dismissed the husband's appeal on the ground that the wife had not only acquired a domicile of choice here before July 2000 but also had been habitually resident here throughout the previous 12 months.

    26.  It is not now disputed that the wife would be habitually resident and domiciled here were it not that her presence in this country was, at the material time, unlawful. The issue, therefore, is the impact of that illegality on the jurisdictional requirements set out in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. This has since been amended to give effect to the Council Regulations EC No 1347/2000 and EC No 2201/2003, but at the material time, it read as follows:

    "The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage -

    (a)  is domiciled in England and Wales on the date when the proceedings are begun; or

    (b)  was habitually resident in England and Wales throughout the period of one year ending with that date."

Habitual residence

    27.  The principal authority on this issue is the decision of this House in R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309. At issue was the interpretation of the requirement in the Local Education Authority Award Regulations 1979 (SI 1979/889), reg 13, that, in order to qualify for a mandatory student grant, an applicant had to have been 'ordinarily resident' in the United Kingdom for the previous three years. The five applicants had lived here for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the fifth had entered with his parents for settlement and had indefinite leave to remain. This House held that the natural and ordinary meaning of ordinary residence had been settled by two tax cases, Levene v Inland Revenue Commissioners [1928] AC 217 and Inland Revenue Commissioners v Lysaght [1928] AC 234. Lord Scarman, with whose opinion all the other members of the committee agreed, said this, at p 343:

    "Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."

    28.  This was "ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind" (p 344). Parliament must have deliberately chosen this simpler test rather than the "difficult" concept of domicile, "dependent upon a refined, subtle and frequently very expensive judicial investigation of the devious twists and turns of the mind of man" (p 345). The lower courts had erred in attaching decisive significance to the immigration status of the five students. It might throw light on the question, but would be "of little weight when put into the balance against the fact of continued residence over the prescribed period" (p 349).