Mark v Mark: CA 19 Feb 2004

The husband sought to stay divorce proceedings saying that his wife was an illegal overstayer, and could not therefore establish residence either as habitual or as domicile of choice.
Held: Jurisdiction existed. The law since Shah had developed and the rule was one of public policy, not of construction. The Human Rights Act required the courts to provide a remedy, and jurisdiction could be granted based upon the wife’s habitual residence here. The need to prevent unlawful residence creating rights to benefits has no place in family law. The law has a margin of appreciation within which it could prevent an ouster of jurisdiction for an element of illegality.


Thorpe, Waller, Latham LJJ


Times 27-Feb-2004, [2004] EWCA Civ 361, [2004] EWCA Civ 168, Gazette 01-Apr-2004


Bailii, Bailii


Domicile and Matrimonial Proceedings Act 1973 5(2)


England and Wales


CitedRegina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK 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 . .
See AlsoMark v Mark CA 27-Nov-2002
Effect of questions about immigration status on domicile and jurisdiction to issue divorce petition. . .

Cited by:

Appeal fromMark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Lists of cited by and citing cases may be incomplete.

Family, Jurisdiction

Updated: 24 July 2022; Ref: scu.194817