In U v J [2017] EWHC449 (Fam) a well-travelled divorcing spouse changed her domicile to England and Wales despite only spending a short time there nearly two decades ago.
The concept of domicile is a legal one which impacts not only on tax but also upon the jurisdiction of the courts in certain areas such as divorce. The basic principles for establishing an individual’s domicile status are however broadly the same.
In a case heard by the High Court family division, U claimed that she was domiciled in England and Wales in order to be entitled to have her divorce case heard by the English courts.
- Her domicile of origin was in the Republic of Ireland.
- Her longest continuous stay in England was for 18 months from 1995-97 whilst pursuing her masters degree.
- She made two further visits; for a year in 2001/02 and for a few weeks in 2006 when her first child was born.
- U married J in 2005; in their prenup they both declared themselves British subjects.
- U obtained diplomatic status in 2005 recording London as her permanent address and fiscal country of origin.
- She was on the UK electoral roll from 2003 to 2005 and applied to vote by post in the 2016 referendum.
- U spent the rest of her time from 1995 to the date of her divorce petition in 2015 living in various places (Brussels, Albania, Sarajevo) due toeither her own work with the EU or her husband’s work.
- U asserted that she was domiciled in England and Wales. Her spouse J contested this and denied that he was (and ever had been) domiciled in England and Wales himself. J had an Indian domicile of origin.
The court held that U was domiciled in England and Wales. It acknowledged that her presence was not very long and a long time ago but said that even short-term presence in the UK can be sufficient to establish a domicile. U had done enough to make England her permanent home; despite her considerable absences, none of her overseas stays resulted in a new permanent home having been acquired. The judge agreed that J was not domiciled in England and Wales; although the judge believed that he had acquired a domicile of choice there (he had spent much longer living in England than U ever had) this had since been abandoned.
Comment
Whilst not a tax case this decision is interesting because it shows the court adopting a less stringent and more pragmatic approach when considering whether there is a domicile of choice; previously this has been very difficult to establish. It also shows the importance of clear and detailed statements of fact in domicile cases.
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