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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Olafisoye v Olafisoye [2010] EWHC 3539 (Fam) (19 February 2010) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2010/3539.html Cite as: [2011] Fam Law 347, [2011] 2 FLR 553, [2010] EWHC 3539 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		19th February 2010

MR JUSTICE HOLMAN:

The issue at this hearing

1. An order made by myself on 6^th February 2009, read with an order made by Mr Justice Bennett on 17^th March 2006, identified a range of issues to be considered at this hearing. These included, if there was jurisdiction to do so, the suit for divorce itself and final ancillary relief. A hearing was fixed for early October 2009 with five days allowed. Later, the parties mutually vacated that date and re-fixed it for 20^th January 2010 with only three days allowed, which could not be exceeded, in part because I was then immediately travelling on circuit.
2. Meantime, the overall complexity of this case has intensified, and in the event the three days were barely sufficient even to tackle the logically first issue, namely the jurisdiction of the courts of England and Wales even to entertain these proceedings at all.
3. The second issue, not reached or considered at all at this hearing, is whether the marriage between the parties has, in any event, already been finally dissolved by proceedings in Nigeria which require, or are entitled, to be recognised here. That issue currently arises, however, solely in the context of the wife's petition to this court for an English divorce. It does not currently arise as a freestanding or abstract matter. Accordingly, it is logically the second issue, since this court cannot even consider it unless and until the court has determined that it has jurisdiction to entertain at all the petition and proceedings for divorce.
4. I regret that there was insufficient time for a more composite hearing, not least because I could have heard more sustained oral evidence from each party and perhaps formed a more overall view of their respective reliability as witnesses. However, the issue of jurisdiction is not only logically the first, but also a discrete and severable issue, and it does seem to me that in these very protracted proceedings it is high time it is grappled with and decided.

How the issue of jurisdiction arises

5. It is common ground that these parties validly married in Nigeria in November 1990. Accordingly, I will for convenience call Eno Elim Olafisoye 'the wife' and Chief Adebiyi Obiajulu Olafisoye 'the husband', although the husband contends (but the wife denies) that they are now already divorced.
6. The wife first presented a petition to this court on 17^th May 2005. At the present hearing, I gave leave to the wife to amend that petition without formal re-service (the husband and his lawyers being present at the hearing) in the terms of the amended petition dated 18^th January 2010.
7. Properly speaking, an amended petition amends facts and matters as they were on or before the date of the original petition. Technically incorrectly, paragraph 8 (b) to (f) of the amended petition refers to the course of proceedings in Nigeria subsequent to 17^th May 2005, which should technically be the subject of a supplemental petition. But I see no point in requiring, and no need to require, the proliferation of pieces of paper, and it seems to me acceptable that those matters have been included in the amendments to paragraph 8.
8. However, what is relevant to the present hearing and judgment are the amendments to paragraph 3, which relate to the grounds of jurisdiction, and it is those grounds in the amended, rather than the original, petition which I now consider.
9. I stress that the question remains whether any of those grounds existed on 17^th May 2005; not whether they may exist now. It would be entirely possible for grounds not to have existed in May 2005 but clearly to exist now (e.g. even if not habitually resident here then, the wife could have become so in the meantime), so that even if there was no jurisdiction then, a fresh petition could be issued now. However, as Mr Rafaquat Hussain submitted on behalf of the husband, much has happened between 2005 and the present time in reliance upon the present petition, so it is important to establish whether it was or was not well grounded.

The legal framework

10. It is convenient to begin by reference to the relevant statutory and European framework. For the purposes of Part I of the Domicile and Matrimonial Proceedings Act 1973 as amended, and for the purposes of this judgment, 'the Council Regulation' means Council Regulation (EC) Number 2201/2003 (commonly known as Brussels II A, or revised).
11. Section 5 (2) of the 1973 Act provides that the court shall have jurisdiction to entertain proceedings for divorce if (and only if) either the court has jurisdiction under the Council Regulation; or no court of a contracting state has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun.
12. In the present case, there is no possibility of any connection with any contracting state other than the United Kingdom, and no possibility of a court of any other contracting state having jurisdiction if this court does not do so. On the facts of this case, the effect of section 5 (2) is, accordingly, that this court has jurisdiction if it has jurisdiction on one or more grounds under the Council Regulation or, if it does not, if either of the parties was domiciled in England and Wales on 17^th May 2005. (Jurisdiction under section 5 (2) founded on domicile alone has been referred to by counsel in this case as 'residual jurisdiction' following the heading to Article 7 of the Council Regulation.)
13. The grounds under the Council Regulation are contained within Article 3.1 and in this case the wife relies on the second and/or fifth indents of Article 3.1 (a). So the pleaded grounds of jurisdiction are that (i) the spouses were last habitually resident in England and Wales and the wife still (viz on 17^th May 2005) resides here; or (ii) the wife is (viz on 17^th May 2005) habitually resident in England and Wales and has resided here for at least a year immediately before that date; or (iii) residually, if neither (i) nor (ii) apply, the wife is (viz on 17^th May 2005) domiciled in England and Wales. It is not, and could not sensibly be, suggested that the husband was domiciled here at any material time.
14. A problem potentially arises in relation to the two grounds under Article 3.1 (a). The ground under the second indent refers to the Member State in whose territory 'the spouses were last habitually resident, insofar as one of them still resides there'. The ground under the fifth indent refers to the Member State in whose territory 'the applicant is habitually resident if he or she resided there for at least a year immediately before the application is made'.
15. The problem is: does the word 'resides' or 'resided' where it respectively appears in those indents (and also in the sixth indent) stand as shorthand for 'habitually resides' or 'habitually resided'; or is the word deliberately used without the qualification 'habitually' so as to draw some distinction between 'residence' and 'habitual residence'?
16. Two very distinguished judges have disagreed on this point. In Marinos v Marinos [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018, Munby J held at paragraphs 45-49 that there is a distinction in the Regulation between habitual residence and residence and said at paragraph 46,

'… those words, as it seems to me, mean just what they say. What are required are two things: (i) habitual residence on a particular day and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period'.

17. The observations of Munby J are, to a degree, obiter, for at paragraphs 80 and 84, he later concluded on the facts that the wife had been habitually resident in this country for several years. It was only if he was wrong about that point (see paragraph 85) that the alternative basis of jurisdiction was relevant, namely that she had been resident (though not habitually) here for several years and was habitually resident on the date of the petition even if not before.
18. In the slightly later case of Munro v Munro [2007] EWHC 3315 (Fam), [2007] 1 FLR 1613, Bennett J was faced with the decision of Munby J. But at paragraphs 48 to 53 he came to the contrary view, namely that the residence has to have been habitual throughout the relevant period. In Munro, the view of Bennett J was undoubtedly expressed entirely obiter, since at paragraph 43 he had already reached his conclusion as to jurisdiction on other grounds (domicile), and at paragraph 54 he expressly stated that his 'expiation on this topic may possibly not be justified and … may even be unsound'. (See also the first sentence of paragraph 49.)
19. I have been tempted to enter into this debate, and I originally drafted an extensive passage in this judgment in which I further analysed the issues and expressed my own conclusion as to the correct meaning and application of the indents. However, as will later emerge, I have reached the very clear conclusion on the facts of this case that if the wife was habitually resident here on the date of the petition, then she was habitually resident here throughout the whole of the preceding year and indeed considerably longer. The bigger area of uncertainty in the present case relates to the period immediately preceding the petition rather than to the earlier part of the year. So any views on this issue of law would be obiter and are irrelevant to my decision, and I have decided I should therefore not express them.
20. As to the meaning and import of 'habitual residence' for the purpose of the Regulation, I gladly adopt the passage in paragraph 33 of the judgment of Munby J in Marinos (himself quoting the explanatory report of Dr Alegria Borras and the French Cour de Cassation). The phrase means 'the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant factors being taken into account for the purpose of determining such residence', and 'the place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests.'
21. For the purpose of Article 3 of the Council Regulation, there can only be one habitual residence at any one time (Marinos at paragraphs 41, 43 and 79; Munro at paragraph 47). The approach to identifying the habitual centre of the relevant person's interests is illuminated by the discussion by Munby J in paragraphs 81 to 83 of Marinos of the facts and pointers in that case,

'How the balance comes to be struck must depend upon all the factors in issue in the particular case, the task for the judge being to attribute to each of those factors the weight which in his estimation attaches to it in the particular circumstances of the particular case.'

22. The Council Regulation is recent and there is relatively little case law on its meaning and scope. The concept of domicile is long established and deeply embedded in our law, and I propose to make only brief references to the law of domicile in the course of the narrative and my conclusions as to the facts. Since she asserts that the court has jurisdiction, the burden of proof on all issues is in general upon the wife. The standard of proof is the balance of probability.

The history

23. I propose to combine my narrative of the history with my findings on the disputed facts. I heard relatively brief oral evidence from both parties and I record my overall impression of them as witnesses. I considered that the wife gave careful, straightforward answers, and despite skilled cross-examination by Mr Hussain she was not demonstrated to have been untruthful. By contrast, the husband became increasingly evasive under cross-examination by Mr Adedamola Aderemi on behalf of the wife.
24. Sustained cross-examination based upon the husband's own letter dated 10^th January 2001 (it was agreed that the year 2000 at the top of the letter was a familiar mistake made early in the New Year) now at bundle 1A page 112 revealed much that the husband had earlier said in his oral evidence to be plainly unreliable or untrue.
25. The husband also claimed in his oral evidence that his daughters from his first marriage spent much of their time out from Roedean with their own mother. There had been no suggestion of this in paragraphs 89 to 90 of his affidavit in 2006, now at bundle 1, page 150, the inference being that they spent their spare time largely with him.
26. The husband claimed in his oral evidence that he had found out before the year 2000 about the wife's affair with a man called Terry Waya. This cannot be true, when he made no reference to Terry Waya in his letter of 10^th January 2001; and in any event, I am satisfied the affair only began in 2003. The husband's answer during cross-examination that he omitted to mention that affair in the letter because he was 'devastated at the departure of [his] wife to England' was wholly unconvincing.
27. In my view, the husband adjusts his evidence to suit his case, and where their accounts differ, I prefer the evidence of the wife and consider it to be the more reliable.
28. The husband was born in Nigeria in 1952 of Nigerian parents. He is a citizen of Nigeria and Nigeria alone. He was brought up in Nigeria. He is a traditional chief of his village in Ondo, Nigeria and he regularly spends time in Ondo. He has extensive business interests in Nigeria and has always maintained a home there, although he also owns (or controls) property here and has lived here at times and his daughters from his first marriage were educated at Roedean.
29. I am in no doubt that the husband's domicile of origin was Nigerian and that he has never abandoned that domicile of origin and acquired a domicile of choice here. I am not at all persuaded that there was ever a period when he became habitually resident here to the exclusion of earlier habitual residence in Nigeria (and as noted above, a person can only have one habitual residence at any given time for the purpose of the Regulation).
30. Without more ado, I reject the first ground of jurisdiction pleaded in paragraph 3 (b) of the amended petition and based on the second indent to paragraph 3.1 (a) of the Regulation, namely that both spouses were last habitually resident in England and Wales.
31. The position and history of the wife, however, requires closer and more detailed consideration. It begins with the domicile of her father at the date of her birth, thus establishing her own domicile of origin. The evidence of the wife in relation to her father's life before, and at the time of, her own birth is of course entirely hearsay. Nevertheless, it satisfies me as follows.
32. Her father was born a Nigerian in Nigeria in 1929. At the age of 20, he travelled to England in 1949. He studied for, and took, A Levels in London. In 1953, he went to Edinburgh University where he trained as a doctor between 1953 and 1959. He then spent a year working in America as what we would call a houseman. He returned to England and Wales and worked as a GP in Wales in 1961 and 1962. He then worked as a locum GP in Dagenham, London before returning to Edinburgh between 1964 and 1966 to take a post graduate degree. It was also in 1964 that he returned for the first time in 15 years to Nigeria purely on holiday. While there, he met and married the wife's mother who joined him in the United Kingdom in December 1964.
33. The wife herself was born in Edinburgh on 19^th November 1965 while her father was studying there and her parents were living there. She is, and has since birth been, a citizen of the United Kingdom. Having completed his post graduate degree, her father returned to London where he worked as a GP in North London from 1966 to 1968 and then in a hospital in Dagenham from 1968 to 1975. Four more children were born in London in the period 1966 to 1975.
34. So, by 1975, the wife's father had lived for about 26 years in the United Kingdom save for one year's training in America. Although he studied at Edinburgh University in Scotland, his time there was limited to his periods of study. Otherwise, he always made his home, obtained employment and based himself in England and Wales.
35. In 1975, the father was offered a job to establish a department of tropical medicine in Nigeria. He accepted it and did return to Nigeria. He was now aged 46 and was to spend the rest of his working life in that job. But on retirement, he returned to England where his wife and all his children were then living. After retirement, he was asked back to do some further work at the department of tropical medicine. For this purpose, he did travel to Nigeria in October 1999 and in fact died whilst still there, the following month.
36. On these facts, I am quite satisfied that the wife's father had clearly settled in England and Wales and acquired a domicile of choice here, well before the birth of the wife. Although she was actually born in Scotland while he was studying there, his domicile of choice remained England, not Scotland, and the wife's domicile of origin, being the place of her father's domicile on the date of her birth, is England and Wales.
37. It is less clear whether, after 1975, the father retained his English domicile of choice or abandoned it so that his Nigerian domicile of origin reverted. He retained links with England and was to return here on retirement 24 years later. But it was to his country of origin that he returned in 1975 and he was to remain based there for the rest of his working life.
38. I consider, on balance, that he did abandon his English domicile of choice and that his Nigerian domicile of origin reverted, which accordingly became the domicile of dependence of the wife until she attained the age of 16 in November 1981. At that time, the wife herself was living in Nigeria with her parents. She obtained her first degree, a BA in Communication Arts, at university in Nigeria in 1989 at the age of 23.
39. In the period 1972 to 1989, she had visited England about three times for holidays of three to four weeks each, and in 1989, shortly after completing her degree, she moved to England to live first with her uncle and later with one of her sisters. But in November 1990, at the age of almost 25, she returned to Nigeria to marry according to native law and custom the husband, whom she had first met in 1987 and by whom she had become pregnant before the marriage. Almost immediately after the marriage, the wife returned to England. She lived from December 1990 at a house at 11 Lower Merton Rise, London, NW3, which was owned by the husband.
40. The husband's two daughters from his first marriage, Teniade (born in September 1979) and Adenike (born in April 1981) were in England and at boarding school here; and although it is disputed by the husband, I am satisfied that the wife had considerable involvement in their care during exeats, holidays and outings from school. The parties' only child, a daughter Omotade, was born in London on 4^th March 1991. Omotade is now aged almost 19 and is at Hull University.
41. The wife lived here continuously until 1993. Between 1991 and 1993, she undertook a two year course in law at Buckingham University. In this period, the parties spent holidays abroad in places such as America and Jamaica, but the wife was clearly rooted here as her home.
42. After the wife had completed her course at Buckingham University, the husband asked her to return to Nigeria to study Nigerian law there and assist in his businesses, and she did so. She studied at the Nigerian Law School from November 1993 and was called to the Nigerian Bar in 1996. She says, however, and I accept, that during holiday periods she continued to return to England.
43. Once she had been called to the Bar in 1996, she did spend more time in Nigeria and now worked in the husband's travel and air cargo businesses there. She said in oral evidence that she became very busy as she had her homes in Nigeria and England, the children and her own work, and was married to a very busy man. In this period, the stepdaughters remained at school in England but Omotade was at school in Nigeria.
44. The wife says at paragraph 23 of her statement dated 28^th July 2005 that in this period, 'it was the regular order of our lives that we maintained two homes in both countries'. She said in oral evidence that on average she was in England not less than six or seven times a year in the period 1993 to 2000. The visits varied in duration but were up to about two months during the summer. She said of the husband that he, too, came here quite regularly, having properties and business interests here and visiting a GP here.
45. There was a row during 1999 because, the wife says, the husband objected that she had issued an economy class ticket to one of his employees. Whatever the reason, the marriage very sadly began to disintegrate during 2000. In December 2000, the wife travelled to London and was living at 11 Lower Merton Rise.
46. In January 2001, the husband wrote his letter (wrongly dated 2000) now at bundle 1A page 112. Whatever the truth of the matters to which the husband refers in that letter, it has an air of finality about it in relation to the marriage. The final sentences read,

'I hope [Omotade] does not turn out to be a replica of you, her mother. I do hope your journey through life with your adviser friends is smooth sailing and rewarding.'

47. In March or April 2001, there was a burglary and damage was done to 11 Lower Merton Rise. The wife moved out, and moved in with her sister at Page Street in Mill Hill. Omotade was in school in England in Kent. In October 2001, the wife enrolled in an LLM course at Dundee University although she later had to interrupt the course when the husband withdrew financial support and she could not continue to pay the fees.
48. In summer 2002, the wife did return to Nigeria. In part, this was because she could no longer afford the school fees for Omotade in England; in part, because she obtained a job in Nigeria; in part, because she hoped in vain that she might be able to repair the marriage. Whilst in Nigeria, the wife met in 2003 a man called Terry Waya, who appears to have some prominence in Nigeria. In about July 2003, she conceived a child by him.
49. On 16^th January 2004, the wife returned to England. Her son by Terry Waya, namely Terhide Waya, was born in Barnet on 9^th February 2004, so he is now aged just six. The wife resumed her course in Dundee and graduated with her LLM in June 2004. She remained continuously in England or Scotland between January and September 2004.
50. In 2004, she travelled to Nigeria where Omotade was due to return to the British International School and there was another wrangle with the husband about the fees. Over Christmas 2004, the wife and her children, Omotade and Terhide, spent a holiday in South Africa.
51. She returned to England on the 13^th March 2005 but went back to Nigeria on 26^th March because there were continuing problems about Omotade's school fees and Omotade was about to sit exams. She returned to England again on 27^th April 2005 and went on holiday to America between 4^th and 10^th May 2005. She returned to England on 10^th May and presented her petition for divorce on 17^th May 2005.

Analysis

52. I have already held that the husband never became domiciled here, nor was the place of last joint habitual residence here. The marriage disintegrated during 1999/2000. The move of the wife to England in December 2000 effectively marked the end of any joint residence. Immediately prior to that, they had been habitually resident together in Nigeria.
53. I have already held that the wife's domicile of origin is England and Wales. During her childhood, she later acquired a Nigerian domicile of dependence which persisted after she attained the age of 16 until at least when she moved to live in England in 1989. In my view, that move at the age of 23 would have been an enduring one if she had not become pregnant by, and married, the husband. It is significant that as soon as she had completed her first degree in Nigeria, she travelled back to England and the country of her childhood.
54. A domicile of dependence is the least enduring and most easily displaced, and in my view her English domicile of origin did revive in 1989/1990 when she was living here and before she married her husband. Even if that be wrong, she was to live predominantly in England from 1990 until 1993 and it was in England that she immediately based herself when her marriage broke down in late 2000/early 2001.
55. I am satisfied that it was only the problems of Omotade's schooling and funding, and later her affair with Terry Waya which took her back to Nigeria for quite substantial periods between 2002 and 2005. It is significant that Terhide was born here and that she undertook her LLM in Dundee in the period 2001 to 2004.
56. Even if not before, I am quite satisfied that any domicile of dependence or choice in Nigeria was severed in 2001 and her English domicile of origin revived, never to be abandoned before the issue of the petition, or indeed to date.
57. Although that conclusion is sufficient to ground jurisdiction, domicile is nevertheless the 'residual' ground of jurisdiction under the Regulation, and I should separately consider whether jurisdiction has been established based on habitual residence under the fifth indent to Article 3.1 (a).
58. Without in any way deciding, or even expressing a view on, the point which, as I have explained, has divided Munby and Bennett JJ, I propose to assume that the indent requires the wife to have been habitually resident here throughout the year ending on, and still habitually resident on, 17^th May 2005. The question is where, throughout that period, the wife had established on a fixed basis her habitual centre of interests; and where she had fixed, with the wish to vest it with a stable character, the habitual centre of her interests. Clearly, that requires particular focus on the year in question, but it does not require that that year is viewed in isolation.
59. On behalf of the husband, Mr Hussain has understandably stressed the relatively small amount of time that the wife was actually present in England during the preceding year and in particular, during the last eight months of it. In the first part of the year, from mid May to mid September 2004, she was here (or in Dundee completing her LLM) continuously, namely for some four months or about 120 days. In the last eight months, from mid September 2004 to mid May 2005, she was only actually present in England on about 28 days and she was absent altogether for about six months from 11^th September 2004 until 13^th March 2005.
60. Mr Hussain submits that in the face of those statistics it is simply impossible to say that she was habitually resident here on 17^th May 2005 or in the last preceding months, even if (which he does not accept) she may have been habitually resident here in the earlier part of the preceding year from May to September 2004 when she was certainly present here. (Hence the irrelevance in this case of the Munby/Bennett divide).
61. In my view, however, whilst never losing sight that it is the quantity and quality of the residence in the last year which matters, it is necessary to take a wider view. As Mr Aderemi has pointed out, in the whole period from January 2001 to 17^th May 2005, the wife lived in England (or Scotland while studying) for about 30 out of the 52-53 months.
62. In my view, she very clearly did establish the habitual centre of her interests here in and from January 2001 with the wish to vest it with a stable character. Her marriage had broken down. She settled here where all her several siblings were living. She placed her child in school here, and she embarked on further study over the border in Dundee. Having established that habitual residence, the question is whether she broke it and either re-established habitual residence in Nigeria, or ceased to be habitually resident anywhere at all.
63. In my view, she did not. What took her back to Nigeria was not a wish to establish the centre of her interests there, but the need to find schooling for Omotade when the husband refused to pay the fees here. She plainly stayed longer in Nigeria when she embarked on her affair with Terry Waya, but it is significant that she returned here in January 2004 to give birth to her son here. She resumed her LLM at Dundee. It was only because of continuing difficulties with Omotade's schooling that she returned to Nigeria in September 2004. The periods in South Africa and later in America were clearly only holidays. She came back here in March 2005 when she could. She was here on 17^th May 2005 itself.
64. For these reasons, in my view, the wife became habitually resident here in about January 2001 and remained habitually resident here in the whole period up to and including the date of her petition, 17^th May 2005, and including the whole year preceding that date.

Outcome

65. I accordingly hold that this court has jurisdiction to entertain the wife's amended petition for divorce on the grounds (i) that the wife was habitually resident in England and Wales for at least a year immediately before the date of presentation of her petition; and (ii) residually and if necessary, that she was domiciled in England and Wales on the date of presentation of her petition.

End of Judgment.