Mark 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 presence here had come to be a criminal offence under the 1971 Act.
Held: The authorities were not so consistent as to be binding. The court approached the issue from principle. The effect of denying domicile as a foundation of jurisdiction was generally unhelpful in private law matters. ‘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. ‘ Domicile of origin is not lost if the residence becomes unlawful at some later date. ‘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.’ The wife could petition for divorce here.

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers, Baroness Hale of Richmond
Times 05-Jul-2005, [2005] UKHL 42, [2005] 3 All ER 912, [2006] 1 AC 98
Bailii, House of Lords
Domicile and Matrimonial Proceedings Act 1973 5(2), Immigration Act 1971, Council Regulations EC No 1347/2000
England and Wales
CitedUdny v Udny HL 1869
Revival of domicile of origin after loss of choice
The House considered the domicile of the respondent’s father at the time of the respondent’s birth. The father had been born in Scotland but had left Scotland and taken a lease of a house in London. He had a castle in Scotland but that was not . .
CitedTom Omoghegbe Ikimi v Teresa Omawumi Ikimi CA 13-Jun-2001
A petitioner could issue a petition for divorce on the basis of being habitually resident in the UK, even though she would also have habitual residence elsewhere. In this case she had been in England for 161 days out of the year in question. . .
CitedEx parte Donelly 1915
(South Africa) 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 . .
CitedSolomon v Solomon 1912
(Australia – New South Wales) The fact that a party’s residence in New South Wales was unlawful, prevented the acquisition of a domicile of choice there. ‘It is a curious proposition that a Court of Justice in New South Wales should hold that a man . .
CitedPuttick v Attorney General etc FD 1980
Astrid Proll, a former member of the Baader-Meinhof gang absconded while awaiting trial in Germany. She entered the UK using a passport which she had bought in the name of Senta Sauerbier, and married Robin Puttick under that name. The German . .
CitedSzechter (orse Karsov) v Szechter 1971
The parties, who had been given leave to stay in the United Kingdom for only a limited period, had acquired a domicile of choice in England by residing here with the intention of making this country their permanent home. It was immaterial that their . .
CitedEx parte Gordon 1937
(South Africa) The applicant’s husband had been deported. The wife sought relief.
Held: The effect of the deportation was to extinguish the husband’s domicile, and the court no longer had jurisdiction. . .
CitedBell v Kennedy 1868
A domicile of choice in a country is been acquired immediately upon the person’s arrival in that country.
Lord Cairns, having held that it was unnecessary for him to examine the various definitions that have been given of the term ‘domicile’, . .
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 . .
CitedIn re Abdul Manan CA 1971
The applicant was a Pakistani seaman who had deserted from his ship and his presence in the UK was unlawful under the 1962 Act. He nevertheless claimed to be entitled to enter and remain as a person who had been ordinarily resident here for two . .
CitedRegina v Secretary of State for the Home Department, Ex parte Margueritte CA 1982
The applicant first arrived 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. . .
CitedJablonowski v Jablonowski 1972
(Ontario High Court) The petitioner had met both the residence and animus requirements despite having entered Canada illegally. . .
CitedSmith v Smith 1961
(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 . .
CitedMay v May 1943
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. . .
CitedZanelli v Zanelli 1948
Acquisition of domicile of choice despite immigration status. . .
CitedIn re the marriage of Salacup 1993
Establishing of domicile were party’s immigration status changed over time. . .
Appeal fromMark 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 . .
See AlsoMark v Mark CA 27-Nov-2002
Effect of questions about immigration status on domicile and jurisdiction to issue divorce petition. . .

Cited by:
CitedWitkowska v Kaminski ChD 25-Jul-2006
The claimant sought provision from the estate claiming to have lived with the deceased as his partner for the two years preceding his death. She appealed an order which would be enough to allow her to live in Poland, but not in England. She said . .
CitedBarlow Clowes International Ltd and Others v Henwood CA 23-May-2008
The receiver appealed against an order finding that the debtor petitioner was not domiciled here when the order was made. The debtor had a domicile of origin in England, but later acquired on in the Isle of Man. He then acquired a home in Mauritius . .
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, Immigration

Updated: 11 November 2021; Ref: scu.228063