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2010-06-29 - SB v Secretary of State for Work and Pensions (BB), [2010] UKUT 219 (AAC) Upper Tribunal

Family · England and Wales · Marriage · Polygamy

Rules determining domicile and therefore the validity of a marriage

Key facts of the case - The appellant, SB, lived in Bangladesh and was the sole surviving wife of the deceased, JU. Her claim for bereavement benefit was rejected and her appeal was also rejected by a judge in the First-tier Tribunal. That Tribunal concluded that the marriage between SB and JU was not valid for the purposes of entitlement to bereavement benefit. The Secretary of State’s representative also agreed that the First-tier Tribunal’s approach to the question of validity of marriage was incorrect and the question of law needed to be clarified.
SB was in fact JU’s third wife. He married his first wife Sundor in Bangladesh sometime before 1963 and she died also sometime before 1963. He then married MB with whom he had ten children and she died in London, UK in 2005. Meanwhile, JU married SB in Bangladesh in 1997. JU himself died in 2007 in Bangladesh. The question was whether the marriage between SB and JU was valid in English law. The First-tier tribunal took a confusing route to answer the question on the basis of what JU’s domicile was in 2007 when he died.

Main reasoning of the court - The Upper Tribunal held that the correct date on which JU’s domicile was to be assessed was in 1997 when he married SB and that the First-tier Tribunal’s approach was incorrect. JU already had one living wife, MB, in 1997. Therefore, if he had acquired an English domicile by then, although his marriage to SB may well be valid under Islamic law, it was invalid under English law. That is because English law does not permit an English domiciliary to contract a polygamous marriage (section 11(d) of the Matrimonial Causes Act 1973). However, if he retained his domicile of birth in Bangladesh, then his marriage to SB could be recognised under English law. A person’s domicile of origin is received by operation of law at birth; any domicile of choice is acquired later by the individual actually moving to another country and intending to remain there indefinitely. The decision sets out, usefully, the basic rules which govern the acquisition and loss of domicile of origin and of choice by reference to Halsbury’s Laws of England (Volume 8(3), “Conflict of Laws”) which was regarded by the Tribunal as ‘as an authoritative statement of the relevant law’:

26.... A person’s domicile of origin is retained until the acquisition of a domicile of choice; it cannot be divested, although it remains in abeyance during the continuance of a domicile of choice. A person’s domicile of choice is lost by abandonment, at which point the domicile of origin will revive unless some other domicile is acquired. Furthermore, the domicile of choice is destroyed when it is once lost, but may be acquired again by fulfilling the same conditions as are required in the first instance.

27. As indicated above, in order to have acquired a domicile of choice in a country, an individual must have actually resided there and must have formed the intention of making his sole or principal permanent home in the country of residence, and of continuing to reside there indefinitely. So residence alone, unaccompanied by this state of mind, is not enough. The intention which must be shown is as to the quality of the residence; it is not actually necessary to show that the person concerned intended to change his domicile. A person can change his domicile without changing his nationality; conversely a change of nationality does not necessarily involve a change of domicile.

28. Furthermore, an intention to reside in a country for a fixed period of time, or until some clearly foreseen and reasonably anticipated event happens, will not be sufficient to acquire domicile However, if the proper conclusion from all the circumstances is that the individual intends to make his home in a country for an indefinite time, he will acquire a domicile of choice there notwithstanding a continuing emotional attachment to some other country or an intention to change his residence upon some vague contingency.

29. A domicile of choice can, of course, be lost by abandonment. This process is the exact converse of its acquisition. It is necessary for the person concerned to cease to reside in the country of domicile, and also to cease to have the intention to return to it as his permanent home. Absence without the intention of abandonment is of no effect; nor is intention without any actual change of residence.

Whether JU was domiciled in either Bangladesh or England had to be judged accordingly by the appeal being remitted to another judge in the First-tier Tribunal after a hearing, since the Upper Tribunal could not perform that function.

Comment - Although the decision of the Upper Tribunal sets out fairly clearly what the rules are for determining domicile, and therefore the validity of a marriage, it is by no means clear from case to case whether a person has lost his original domicile and acquired another, and when he or she loses his acquired domicile so as to revert to the original one. Each case would have to be decided according to the facts and the view taken by the decision makers. This can in turn often be motivated by the policy question at stake. For instance there was evidence in this case that the Department of Work and Pensions Relationship Validity Unit (RVU) took the view that JU had acquired a domicile of choice in England by 1997 and therefore lacked the capacity to enter into a marriage with SB under English law. The RVU clearly had a financial interest in so arguing. The difficulty and arbitrariness of determining domicile underlines the fact that the rules on that concept were developed in an era when ‘methodological nationalism’ was assumed in law. In an age when individuals are effectively transnationals, as JU in this case clearly was (he held British citizenship but also had land holdings and a bank account in Bangladesh), it makes less sense for them to be tied down to the rules of one legal system only, as English private international law continues to assume.

See the decision: 2010-06-29, SB v Secretary of State for Work and Pensions (BB).