Mark v Mark

A person whose presence in England was unlawful under immigration law could nevertheless be habitually resident and domiciled in England, so the English court had jurisdiction to grant her a divorce.

Citation
[2005] UKHL 42, [2006] 1 AC 98
Court
House of Lords
Year
2005
Subject
Conflict of Laws
Topic
Domicile, property, foreign states and public policy

Facts

Mrs Mark, a Nigerian national, came to England and overstayed her leave to remain, so that her presence was unlawful under the immigration rules. She lived in England for several years with the intention of remaining permanently, and petitioned for divorce. The English court had jurisdiction only if she was domiciled in England or had been habitually resident there for a year. Her husband argued that an unlawful presence could not found habitual residence or a domicile of choice.

Legal principle

The House of Lords held that Mrs Mark was both habitually resident and domiciled in England. Baroness Hale said that the purpose of the rules on jurisdiction in divorce was to ensure that there was a real connection with the country, and that there was no reason why the unlawfulness of a person's presence should prevent her from being habitually resident there for those purposes. Similarly, a person could acquire a domicile of choice in a country in which her presence was unlawful, because the question is whether she resides there with the intention of remaining indefinitely, although the precariousness of her position might be relevant to her intention. The English court therefore had jurisdiction.

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This summary is for study and revision and is not legal advice. Although our case summaries are checked for accuracy, we do not guarantee that they are free from errors or omissions. Always read the full judgment for the court's reasoning.

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