Court of Appeal: Domicile on Divorce is a Question of Fact
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Lee Henderson
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Understanding domicile in international divorce cases
The divorce team at Osbornes Law are experts in international divorce, with a reputation for successfully representing wealthy clients in complex cases.
The Court of Appeal has given important guidance on the correct approach to determining a party’s country of domicile – their permanent home for legal purposes.
If your divorce involves cross-border issues, difficult jurisdictional questions can arise; for example, if a party has returned to the UK from elsewhere and applied for a divorce.
The following case, in which neither party had legal representation (save for the wife in her appeal), is an example of why it is so important to seek expert legal advice and representation at an early stage, and how doing so can help avoid costly and stressful proceedings.
Domicile
When divorce proceedings are issued in England and Wales, the courts must have jurisdiction to hear the case. The jurisdictional grounds are found in s5(2) of the Domicile and Matrimonial Proceedings Act 1973.
One of those grounds is that on the date of the application, either party is domiciled in England or Wales. A person’s domicile of origin can be displaced in favour of a domicile of choice. That, in turn can be lost where, for example, the party abandons their domicile of choice by ceasing to reside there and abandoning it for a new domicile of choice (or the original domicile is revived).
Ramana [2025] EWCA Civ 1022
In this case, Manisha and Christnan Kist-Ramana were cousins by birth and their families are Mauritian. Manisha grew up in Mauritius and met Christnan, who has British and Mauritian nationality, after coming to England on a student visa.
Christnan was born in England but moved to Mauritius as a baby, and then returned to England when he was 4 years old. Manisha was granted indefinite leave to remain in November 2005 and became a British citizen in March 2018.
They married in October 2003 and had two children. In September 2019, the family moved to Mauritius but the marriage broke down and they separated in late 2020.
On 7 October 2022, Manisha returned to England with the children where she started divorce proceedings on 11 October. Christnan commenced divorce proceedings in Mauritius. Those proceedings are ongoing. He also sought the return of the children under the 1980 Hague Convention but his application was dismissed.
The key issue for the court was determining Manisha’s domicile for the purposes of the proceedings.
On Manisha’s account, the family returned to Mauritius because of their financial circumstances and planned to stay there for a limited time to save some money. They then planned to move to Singapore where Christnan’s prospects for developing his business were better and intended to accumulate sufficient savings so they could eventually return to live in England.
However, Christnan claimed neither of them had any intention to return to live in England, and that Manisha had lost any domicile of choice in the UK when she returned to live in Mauritius.
At first instance, the judge dismissed her application. He found that the courts in England and Wales did not have jurisdiction as Manisha was not domiciled here on the date proceedings began (the only jurisdictional ground on which she relied). He concluded she had acquired a domicile of choice in England and Wales by 2016, but this had not been revived by 11 October 2022.
Manisha appealed, arguing that the judge had failed to address the intermediate issue of whether she had lost her domicile of choice in England before 11 October 2022.
Proving domicile
The Court of Appeal has allowed her appeal and sent the case back for a rehearing.
It concluded that the judge had not properly considered whether Manisha had lost her domicile of choice by 11 October 2022. This was a key issue, but the judge had not clearly addressed it. Furthermore, the judge was wrong to decide that the burden of proof was on Manisha to establish domicile.
At the rehearing, it will be for Christnan to prove that Manisha had lost her domicile of choice in England prior to 11 October 2022.
This will require consideration of all the factual evidence – including what happened after the family left England in 2019. The “ultimate fact in issue”, the appeal court stated, was Manisha’s actual intentions. We await the decision of the High Court.
How we can help
This case highlights how complex and fact-sensitive questions of domicile can be in international divorce proceedings. With so much at stake, early expert advice is essential. For expert legal advice and representation on cross-border divorce proceedings, please contact our expert divorce team by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811.
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