Illegality does not exclude jurisdiction

Mark v Mark HL TLR 5 July

Section 5 of the Domicile and Matrimonial Proceedings Act 1973 at the relevant time provided: ‘(2) The court should have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage – (a) is domiciled in England and Wales on the date when the proceedings are begun, or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.’ Habitual residence and ordinary residence were interchangeable concepts. There was no reason why the word ‘lawfully’ should be implied into s5(2) of the 1973 Act with regard to habitual residence. The purpose of the Act had been to provide an answer to the question: ‘When was the connection with this country of the parties and their marriage sufficiently close to make it desirable that our court should have jurisdiction to dissolve the marriage?’ Either a person had acquired a domicile of choice in this country or she did not. If she had done so, she was not to be denied it because the court considered her case unmeritorious or tainted with moral or legal turpitude. It was a question of fact and not a question of law. Accordingly the wife could be habitually resident and domiciled in England and Wales even though her presence in the UK was a criminal offence.