The concepts of domicile and habitual residence are of fundamental importance to many areas of the law and should never be confused. The distinction between them was made plain by a case in which a British couple were required to proceed with their divorce in the United Arab Emirates (UAE).
The husband was born and brought up in this country and the wife, who was born in South Africa, became a British citizen after settling here in her 20s. They moved to the UAE in 2008 so that the husband could take up a well-paid position there and had remained living there ever since. Following the breakdown of the marriage, the wife petitioned for divorce in England. For his part, the husband argued that the proceedings should take place in the UAE, where he issued parallel divorce proceedings.
Ruling on the matter, the High Court found that, notwithstanding their long absence abroad, both husband and wife remained domiciled in this country when the wife lodged her petition. Her mindset at the time was that she had not made a permanent home in the UAE and that she intended to return to the UK in due course. The husband had not evinced an intention to abandon his domicile of origin, England, and take up a domicile of choice in the UAE.
It was, however, common ground that they were habitually resident in the UAE. If their children completed their secondary education in the UAE, as intended, the couple would have been living there for 20 years. That and other factors persuaded the Court that the UAE was the appropriate forum in which the divorce proceedings should be heard. The English proceedings were therefore stayed.
The wife had expressed concerns as to her prospects of receiving satisfactory justice in the UAE. The Court, however, was unpersuaded that she would be disadvantaged by having her case heard by a recently established, non-religious family court in Abu Dhabi. If she were dissatisfied with the outcome of the UAE proceedings, it would be open to her to seek further financial relief in England under the provisions of the Matrimonial and Family Proceedings Act 1984.