Mark (Respondent) v. Mark (Appellant)
29. Lord Scarman did, however, acknowledge one exception to this straightforward factual question, at pp 343 - 344:
As none of these applicants was unlawfully present, these words were strictly obiter dicta. Furthermore, as Hughes J pointed out, the point was conceded on behalf of the students in the course of argument. But he regarded it as an integral part of the reasoning, particularly as to the limited relevance of immigration control where presence was lawful. Understandably, therefore, he considered that he should follow the principle stated in Shah.
30. In the Court of Appeal, there was much debate about whether the principle was one of statutory construction - implying the word 'lawfully' before 'ordinarily resident' - or whether it was one of public policy - under which a person is unable to benefit from his own illegal act. But the policy reasons for denying the benefit might be the same as those leading to the conclusion that Parliament did or did not intend that the residence be lawful in the particular statute under consideration. Thus, for example, in a statute which confers jurisdiction where either party is habitually resident in this country, there seems no good reason to deny the petitioner the benefit (if such it be) of bringing proceedings here on the basis of the respondent's habitual residence even if that residence is unlawful. The petitioner is not to be blamed for that. Ultimately, however, the Court of Appeal concluded that the principle stated in Shah could not be an absolute rule in the light of the Human Rights Act 1998, and the right of access to a court guaranteed by article 6 of the European Convention on Human Rights.
31. My Lords, I do not consider that there is any need to found our decision upon the Human Rights Act. It is quite clear that Lord Scarman regarded the question he was answering as one of statutory construction. On the meaning of 'ordinary residence' he relied upon the earlier tax cases. Yet it is also quite clear that the legality of a person's residence is completely irrelevant for tax purposes. A person who has taxable income or assets here is liable to United Kingdom tax irrespective of his immigration status. The two cases cited by Lord Scarman in support of the proposition that residence must be lawful were both immigration cases. In Re Abdul Manan  1 WLR 859 the applicant was a Pakistani seaman who had deserted from his ship and so his presence here was unlawful under the Commonwealth Immigrants Act 1962. He nevertheless claimed to be entitled to enter and remain as a person who had been ordinarily resident here for two years. In rejecting that claim, Lord Denning MR said this, at p 861:
32. Indeed, it is scarcely surprising that, in giving immigration rights to people ordinarily resident here, Parliament should exclude those who were here in breach of immigration control. The same applies to the other case relied upon by Lord Scarman, R v Secretary of State for the Home Department, Ex p Margueritte  QB 180. The applicant first came here from Mauritius in 1972, and was given limited leave to enter for a few months. He over-stayed until June 1974 when he paid a short visit to France. On return he was given one month's leave to enter, but again overstayed. In 1978 he married a woman who was settled here and as a result was granted indefinite leave to remain. In 1979 he applied to register as a United Kingdom citizen, on the basis of five years' ordinary residence here, in accordance with a provision inserted into the British Nationality Act 1948 by the 1971 Act. As Lord Scarman mentioned, the 1971 Act contains an express provision, in section 33(2), that a person is not to be treated for the purposes of any provision in that Act as ordinarily resident in the United Kingdom at a time when he is there in breach of the immigration laws. It is scarcely surprising, therefore, that the Court of Appeal construed the new provision in the British Nationality Act in the same way.
33. It is common ground that habitual residence and ordinary residence are interchangeable concepts: see Ikimi v Ikimi  EWCA Civ 873;  Fam 72. The question is whether the word 'lawfully' should be implied into section 5(2) of the1973 Act. I see no reason to do so. The purpose of the 1973 Act was to provide an answer to the question "when is the connection with this country of the parties and their marriage sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage?": see the Law Commission's Report on Jurisdiction in Matrimonial Causes (1972, Law Com No 48), para 5. The Commission went on to point out, at paras 6 and 7, that:
34. With the possible exception of the last, none of these considerations points to a requirement that habitual residence here for this purpose should be lawful. Quite the reverse. As Waller LJ pointed out in the Court of Appeal, at para 57,
35. If there are also proceedings in another jurisdiction which is in the circumstances more appropriate than this, then the proceedings here can be stayed, on the usual forum non conveniens grounds. Alternatively, as happened in this case, if this is the appropriate jurisdiction, the respondent may be enjoined from continuing the proceedings elsewhere.
36. I conclude, therefore, that residence for the purpose of section 5(2) of the 1973 Act need not be lawful residence. The question of whether the residence is habitual is a factual one which should be answered by applying the test, derived from the 1928 tax cases, laid down by Lord Scarman in Shah  2 AC 309. It is possible that the legality of a person's residence here might be relevant to the factual question of whether that residence is 'habitual'. A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. But such cases will be rare, compared with the large numbers of people who have remained here leading perfectly ordinary lives here for long periods, despite having no permission to do so. The husband's first reaction, to admit that the wife was habitually resident here for the purpose of these proceedings, was obviously correct on the facts of this case. There will, however, be other statutory provisions, in particular those conferring entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful.Domicile
37. Habitual residence is simply an expression used in a variety of statutes for a variety of purposes and may thus have a different meaning according to the statutory context. Furthermore, a person may be habitually resident in more than one place at a time, or may have no habitual residence at all. Domicile, on the other hand, is a concept of the common law (although the same word is sometimes used in civilian systems to denote something more like habitual residence). A person must always have a domicile but can only have one domicile at a time. Hence it must be given the same meaning in whatever context it arises.
38. As the Hong Kong Law Reform Commission explain, in their recent Consultation Paper on Rules for Determining Domicile  HKLRCCP 1, para 1.2, "a person's domicile connects him with a system of law for the purposes of determining a range of matters principally related to status or property". Thus, for example, it governs capacity to marry or to make a will relating to moveable property; it is one of the factors governing the formal validity of a will; the domicile of the deceased also governs succession to moveable property and is the sole basis for jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975; legitimacy, to the extent that it is still a relevant concept, is governed by the law of the father's domicile; domicile is one of the bases of jurisdiction, not only in matrimonial causes but also in declarations of status or parentage under the Family Law Act 1976; it is the sole basis of jurisdiction to make an ordinary adoption order under the Adoption Act 1976, s 14, or a parental order under the Human Fertilisation and Embryology Act 1990, s 30. This is not an exhaustive list but it shows the particular importance of domicile as a connecting factor in family law.
39. An adult can acquire a domicile of choice by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely: see the joint report of the Law Commission and the Scottish Law Commission, The Law of Domicile (1987, Law Com No 168, Scot Law Com No 107), para 2.6. There is a long line of cases showing that an alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal: see Boldrini v Boldrini and Martini  P 9, CA; May v May  2 All ER 146; Cruh v Cruh  2 All ER 545; Zanelli v Zanelli (1948) 64 TLR 556; Szechter v Szechter  P 286. Indeed, as already seen, aliens were always in that precarious position, and could otherwise never have established a domicile of choice here. In May v May the principle was applied to a German Jew who had been given only limited leave to land here in 1939. In Cruh v Cruh, Denning J applied the principle to a man of Austrian or German origin who had been recommended for deportation following a conviction for conspiracy and whom the Home Secretary intended to deport as soon as it became practicable to do so. Until the recommendation was actually effected, the domicile of choice remained. Once that happens, however, the domicile is lost.
40. But what if the residence here is not only precarious but actually unlawful? As already seen, this is a relatively recent phenomenon. There was no authority in England and Wales on the point until Puttick v Attorney General  Fam 1. However, there was Commonwealth authority, on the basis of which Dicey and Morris, The Conflict of Laws, 9th edition, 1973, at pp 96-97, "submitted that an English court would hold that a person who was illegally resident in this country could not thereby acquire an English domicile of choice". This was adopted by Baker P in Puttick, albeit obiter, as he had already held that the proposita, the notorious German terrorist Astrid Proll, did not have the requisite animus manendi, being on the run and ready to leave the moment the police caught up with her. Nor were the Commonwealth authorities upon which the text was based produced to him.
41. The first of these is the New South Wales case of Solomon v Solomon (1912) 29 WN (NSW) 68, in which Gordon J observed, at p 70, that "It is a curious proposition that a Court of Justice in New South Wales should hold that a man has acquired a domicile in New South Wales when the laws of the land forbid that man to be here." The result was that his Australian wife was unable to obtain a divorce from her husband, who was currently serving a prison sentence for rape, because he was a South Sea Islander who had come to and remained in Australia in defiance of laws which prohibited South Sea Islanders from doing so, and indeed had been on his way to be deported when he committed the offence for which he was then in prison.
42. A similar injustice was done in the only other case cited by Dicey and Morris which is directly in point, Smith v Smith 1962(3) SA 930, a decision of the Supreme Court of the Federation of Rhodesia and Nyasaland. The husband, a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act. The wife obtained a declaration of nullity, but on the husband's appeal, the court itself raised the issue of jurisdiction. Briggs ACJ conducted a full review of the authorities. He distinguished the cases of precarious residence and condoned residence, and found more helpful some South African cases on the statutory concept of domicile in their Immigration Act (which was deliberately distinguished from the common law concept in another case cited by Dicey and Morris, Parker v Principal Immigration Officer  CPD 255) and the cases holding that a domicile of choice acquired during precarious residence was destroyed by actual deportation, at least where there was also a prohibition on return (including Ex parte Macleod  CPD 312, the last of the cases cited by Dicey and Morris; see also Ex parte Donelly 1915, WLD 29; Ex parte Gordon 1937, WLD 35). He concluded as follows, at p 936:
Thus it will be seen that, although Briggs Ag had earlier, at p 473, referred to the general principle that one "cannot acquire a domicile of choice 'in the teeth of the law'" the principle which he formulated was concerned with the conditions for forming the necessary animus.
43. On the other hand, in Jablonowski v Jablonowski (1972) 28 DLR (3d) 440, Lerner J in the Ontario High Court did not find either Solomon or Smith persuasive. He found that the petitioner had met both the residence and animus requirements despite having entered Canada illegally. Jablonowski was followed by McQuaid J in the Prince Edward Island Supreme Court in Wood v Wood (1977) 4 RFL (2d) 182.
44. My Lords, these authorities do not disclose a long-standing and consistent approach to the issue such that we might be reluctant to depart from it. It is necessary, therefore, to consider the matter as one of principle. The object of the rules determining domicile is to discover the system of law with which the propositus is most closely connected for the range of purposes mentioned earlier. Sometimes that connection will be an advantage to him. Sometimes it will not. As Hughes J put it, at para 73:
Recognising that connection despite the illegality of his presence here does not therefore offend against any general principle that a person cannot be permitted to acquire a benefit from his own criminal conduct.
45. Unlike some of the purposes for which habitual residence may be important, the State has no particular interest one way or another. Indeed, insofar as it does have an interest, this will probably lie in accepting that those who intend to remain here permanently have acquired a domicile here, whatever their immigration status. The actual results in Solomon and Smith, in denying relief to the innocent party to a matrimonial dispute, did no-one any good. While it might be said that the injustice stemmed, not from the principle under discussion, but from the common law's insistence that a wife was domiciled where her husband was domiciled, it would still have been in everyone's interests that the affairs of such long term residents were governed by the laws of the country with which they were so closely connected. The supposed principle served only to separate them from the most appropriate legal system to govern their affairs.
46. As a matter of principle, that connection is established by the coincidence of residence and the animus manendi. If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile is relevant. It would be absurd if this wife's capacity to make a will, succession to her moveable property, and her children's right to make a claim under the Inheritance (Provision for Family and Dependants) Act against her estate were not to be governed by the law of this country.
47. If there is no reason of public policy to deny the acquisition of a domicile of choice in such cases, can it nevertheless be said that legality is an essential element in residence (as it appears that Dicey and Morris regarded it) or in the formation of the animus manendi (as Briggs Ag in Smith regarded it)? Both, however, are issues of fact. As we have already seen, one can be resident in a place where one has no right to be. One can also form an intention to remain in a place despite considerable uncertainty as to whether this will be possible. English law requires only that the intention be bona fide, in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.
48. A further problem in regarding legality as an essential element, touched on by Hughes J, is the shifting nature of immigration status. An asylum seeker, for example, may commit a criminal offence by entering this country illegally. But on making his claim to the authorities, he may be granted temporary admission. His presence is no longer illegal, but under section 11(1) of the Immigration Act 1971 he is deemed not to be here at all. Is he then to be prevented from acquiring a domicile of choice here, although he undoubtedly has no intention of returning to his country of origin? Furthermore, a person's presence here may at times be lawful and at times unlawful. She may not even know what it is or think that it matters very much. She may enter for a limited purpose and be given limited leave to remain which then expires but is routinely renewed a short time later or the status changed. This is what happened in the Australian case of Lim v Lim and Titcomb  VR 370, where there were gaps between the series of temporary permits, although at the material time the propositus was lawfully present in Australia (see also In the marriage of Salacup (1993) 116 FLR 137). In the present case, it so happens that the wife formed her intention of remaining here permanently after her limited leave had expired and presented her petition before her position had been regularised. But the reality of her presence and intention, the merits of her case, and the quality of her connection with the laws of this country are no different from what they would have been had she formed her intention to remain just before her limited leave ran out in April 1998.
49. Hence, my lords, it seems to me that there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country. Although her presence here is a criminal offence, it is by no means clear that she will be required to leave if the position is discovered. Her position is in reality precarious in the same way that the aliens' presence was precarious in the Boldrini line of authority. In fact, it was always much less likely that this wife would ever be removed from this country than it was that the propositus in Cruh would be removed.
50. This is not to say that the legality of a person's presence here is completely irrelevant. As in the precarious residence cases, it may well be relevant to whether or not she had formed the required animus manendi. But this is a question of fact and not, as it was held to be in Smith, a question of law. Nor is it, as at times the Court of Appeal appeared to be saying, a matter of discretion or, as it is put in Rayden and Jackson on Divorce and Family Matters, 17th ed (1997), at para 2.16, of the court being 'hostile' to the assertion of a domicile of choice by an illegal entrant or resident. Either a person has acquired a domicile of choice in this country or she has not. If she has done so, she is not to be denied it because the court considers her case unmeritorious or tainted with moral or legal turpitude. If she has not done so, she is not to be granted it because the court considers her virtuous. It is a matter of fact whether she had the required intention at the relevant time.
51. For those reasons, I would, with great respect, differ from the proposition of law stated by Dicey and Morris and decline to follow the authorities cited in its support. The judge was, in my view, correct in holding that the wife had acquired a domicile of choice here by the time that she presented her petition for divorce.Conclusion
52. It follows that I would hold that the courts of this country had jurisdiction to entertain the wife's divorce petition, both on the basis of her habitual residence for the previous 12 months and on the basis of her domicile here. Accordingly, for these and the further reasons given in the opinion of my noble and learned friend, Lord Hope of Craighead, with which I agree, I would dismiss this appeal. I would also express the fervent hope that the parties can now arrange their affairs with the minimum of resort to further arguments in court. This is benefiting no-one but the lawyers, and certainly not the parties, or their children, or even their wider families, who all have an interest in preserving as much as possible of the family's assets for their own benefit rather than that of others.
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