The Great Marinos/Munro Debate in Divorce – Beheaded or Survived?

Prior to March 2001, there were only two grounds of jurisdiction for divorce in England and Wales. First, either party to the marriage was domiciled in England and Wales on the date when the proceedings began. Second, either party was habitually resident here throughout the period of one year ending with that date. So, our bases of jurisdiction were effectively sole domicile and/or one year’s continuous habitual residence.

When the United Kingdom joined Brussels II in March 2001, the grounds of divorce jurisdiction changed to broadly align with those of other contracting states. We transmuted to six primary grounds of jurisdiction with one residual ground only available if the courts of no other EU member state had jurisdiction, i.e. sole domicile. Two grounds generated a substantial amount of litigation. They were often referred to in shorthand as the fifth and sixth indents. They were as follows:

(1) where the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made; and

(2) where the applicant is habitually resident if he or she resided there for at least 6 months immediately before the application was made and was (in the case of England and Wales) domiciled there.

The debate surrounding these grounds was whether the requirement to have spent 6 months (if domiciled here) or 12 months (if not so domiciled) in England and Wales prior to the date of issue needed to be habitual residence or just ordinary/simple residence.

In Marinos v Marinos [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018, Munby J (in arguably obiter remarks) favoured the lower threshold, i.e. habitual residence was only required on the date of the application with simple/ordinary residence sufficient for the relevant period prior to issue.

By contrast, in Munro v Munro [2007] EWHC 3315 (Fam), [2008] 1 FLR 1613, Bennett J (in his obiter and ultimately qualified remarks[[1]]) adopted the higher threshold, i.e. habitual residence was required both on the date of the application and throughout the relevant period beforehand.

In Tan v Choy [2014] EWCA Civ 251, [2015] 1 FLR 492, Aitkens LJ tantalisingly considered there may even be three possible interpretations of these provisions (before observing the issue was not relevant to the particular appeal[[2]]):

‘30 In these circumstances I would accept that there could be legitimate debate as to what is the precise construction of Article 3(1)(a) indent five. It seems to me that there are (at least) three possible constructions. First, it could mean that the person seeking to found jurisdiction has to be “habitually resident” in the territory concerned at the date the proceedings are started and he also has to have “resided” there for at least a year before the relevant proceedings are started. Secondly, it could mean that the person seeking to found jurisdiction has simply to have been “habitually resident” for one year prior to the start of the proceedings. Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is “habitually resident” at the time the proceedings are started and that this fact is proved by establishing that he/she has “resided” in that territory for at least a year immediately before the proceedings were started (“… application was made”).’

Although the position remained unsettled, Marinos appeared the more favoured approach at first instance[[3]] although at least Dicey, Morris & Collins continued to assert the view for Munro.

The debate narrowly avoided an airing in the Court of Appeal (and potentially the Court of Justice of the European Union (CJEU)) in Orenga de Gafforj v Orenga de Gafforj [2018] EWCA Civ 2070, [2019] 1 FCR 73. The husband’s appeal in relation to the interpretation of the fifth indent and against a refusal to make a CJEU reference was to be determined by the Court of Appeal in October 2018. However, only a month prior to this he was ‘Hadkinsoned’ for failing to pay the wife’s legal costs.

Then came Pierburg v Pierburg [2019] EWFC 24, [2019] 1 WLR 4335, where Moor J – placing weight on, among other things, other language versions of an explanatory report of Brussels II prepared by Dr Borras (‘the Borras Report’)[[4]] – favoured Munro and the higher threshold.

The Munro approach was promptly reinforced as, between Pierburg and Nicolaisen v Nicolaisen [2022] EWFC 70, [2023] 1 FLR 1163, the CJEU decision of Case C-289/20 IB v FA [2022] 2 FLR 294 agreed with the Opinion of the Advocate General which confirmed the Munro interpretation of the fifth indent. Thus, in Nicolaisen, Moor J had little difficulty in confirming the Munro approach (and his own approach in Pierburg) again. So the issue appeared relatively settled.

Shortly after Pierburg, the United Kingdom left the European Union. For us at least, Brussels IIA was no more as of 11 pm on 31 December 2020 (save in relation to divorce petitions issued prior to that date). Section 5 Domicile and Matrimonial Proceedings Act 1973 was duly amended both to remove the direct reference/importation of the Brussels IIA bases of jurisdiction and to add our own. With a couple of notable exceptions, our own were the grounds for jurisdiction formerly contained in Brussels IIA.

One exception was sole domicile was promoted once more to a primary basis of jurisdiction (rather than a residual ground); perhaps thus rendering the joint domicile ground somewhat nugatory.

The main exception, however, appeared to be in respect of our new equivalents for the fifth and sixth indents.

As trailed above, the fifth indent is:

‘the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made’

Our s 5(2)(d) became:

‘the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made’

The sixth indent was:

‘the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made … has his or her “domicile” there’

Our s 5(2)(e) became:

‘the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made’

The replacements of ‘if’ with ‘and’ would suggest the issue had thus been resolved, and resolved conclusively in favour of the Marinos approach.

However, there have since been four cases since the United Kingdom’s departure from the European Union which reach different conclusions on the interpretation of these clauses. The two cases which grapple with the issue in the greatest detail (TI v LI [2024] EWFC 163 (B) and AO v EO [2026] EWFC 30 (B)) are both Circuit Judge/Recorder level, although they have both been certified as suitable for citation.

J v A

J v A [2023] EWFC 132 was a case primarily in relation to whether English divorce proceedings should be stayed to allow the divorce to proceed in Nigeria. Although the issue of jurisdiction did not therefore directly arise, Richard Harrison KC (sitting as a deputy High Court Judge) commented as follows:

‘58 It was well established that for the purposes of Article 3 of Brussels IIA the relevant test for habitual residence is defined as the place where a person has established their fixed centre of interests: Marinos v Marinos [2007] EWHC 2047 (Fam). A significant factor in the assessment is the location of the parties’ matrimonial home: Marinos. In Pierburg v Pierburg [2019] EWFC 24, Moor J held that references to “residence” in this context should be read as meaning “habitual residence”. His judgment in this respect is supported by the decision of the CJEU in IB v FA Case C-289/20 and was reaffirmed by him in Nicolaisen v Nicolaisen [2022] EWFC 70.

59 I accept the submission of Mr Perrins that notwithstanding the UK’s departure from the European Union, the terms “habitual residence” and “residence” under the amended version of section 5(2) of the 1973 Act have the same meaning they were held to have for the purposes of Article 3. I have not heard full argument on the point, but I consider that this proposition is supported by the fact that in amending the Act, Parliament clearly intended that there should be a seamless continuation of the jurisdictional position which existed before Brexit.’

Although this paragraph is obiter and was made without hearing full argument, it is the first suggestion in a reported case post-Brexit that the courts might adopt a purposive approach and follow the EU interpretation of these provisions despite the new pro-Marinos wording.

TI v LI

TI v LI [2024] EWFC 163 (B) primarily concerned the recognition of a divorce obtained in Pakistan. Recorder Nicholas Allen KC held the Pakistani divorce should be recognised in England but also considered whether, in the event he was wrong to recognise the Pakistani divorce, there was divorce jurisdiction in England.

After providing a background to the legislation, the judge considered that when drafting the current legislation, the Ministry of Justice had indicated they intended to follow EU law for continuity and comity. However, the actual wording of the statute departed from the EU wording and literally requires the applicant to be habitually resident only on the day of issue provided he/she has had ordinary or simple residence for the previous 6 or 12 months.

The judge went on to consider another recent judgment of the CJEU namely Case C-462/22 BM v LO. This case arose after the German court referred the Marinos/Munro debate to the CJEU. The CJEU was clear the relevant provisions required habitual residence throughout the relevant period and not just on the day of issue: Munro was correct for Brussels IIA (as it then was).

Recorder Allen KC observed the present position under English law was thus uncertain: the new post-Brexit divorce jurisdiction legislation purports to follow Marinos but also purported to follow EU law.

The judge concluded:

‘89 There is to date no reported decision on the interpretation of the amended English provisions. On a literal approach the legislation is clearly the Marinos interpretation. However on a purposive approach the UK government intended to replicate EU law which probably was at the time, and certainly is now, the Munro interpretation. Post-Brexit, the courts of England and Wales may still take account of CJEU decisions (European Union (Withdrawal) Act 2018 (as amended) s6(2)).

90 In my view, the purposive interpretation is to be preferred because (i) the Ministry of Justice indicated they intended to follow EU law for continuity and comity; and (ii) the position in the EU is now clear and the English courts may still take account of such decisions. In addition, the Pierburg analysis – which prefers the Munro interpretation – is to my mind wholly persuasive. I therefore take the view the present position under English law is that habitual residence is required throughout the relevant period and not just on the day of issue.’

This judgment is again obiter but again expresses a clear view that, despite the wording of the statute, what is required for the period prior to the application is habitual residence rather than just ordinary residence.

KV v KV (No 2)

In the first paragraph of his judgment in KV v KV (No 2) [2024] EWFC 359, [2025] 2 FCR 26, Sir Jonathan Cohen summarised the two key issues before him as follows:

(1) whether there was jurisdiction for the wife to apply in England and Wales for divorce on the basis of her habitual residence in England at the time of her application and for the preceding 12 months; and

(2) if there was jurisdiction, whether the court should stay the English proceedings in favour of the husband’s divorce proceedings issued later in another country.

Thus, Sir Jonathan Cohen implicitly seems to take the Munro view – without giving any reasons – that what is required is habitual residence for the entire 6- or 12-month period as appropriate.

Later on, the judge notes he has been referred to several different authorities:

‘but the test is clear in applying Section 5(2) Domicile and Matrimonial Proceedings Act 1973 which provides …

d. The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.’

The judge immediately then quotes Aitkens LJ in Tan v Choy (including the paragraph above referring to the three possible interpretations) but seemingly does so for Aitkens LJ’s definition of habitual residence and observations that the Munro/Marinos dispute were irrelevant on the facts of Tan v Choy. There is no further analysis as to which of the three possible interpretations Sir Jonathan Cohen was applying nor any specific reference to Pierburg, Munro, Marinos and so on.

The judge concludes the wife was habitually resident in England when her divorce application was filed and in the preceding 12 months but – once again – without giving any reasons as to why that was the appropriate threshold.

It is thus suggested this case, in so far as it touches upon the question, is obiter and does not provide any real assistance when considering the correct interpretation of these provisions.

AO v EO

AO v EO [2026] EWFC 30 (B) was a pure jurisdiction and forum dispute before HHJ Hess. The issues were whether England had jurisdiction (upon s 5(2)(d), i.e. the fifth indent replacement) and, if it did, whether proceedings should be stayed in favour of proceedings in Nigeria.

The husband, who sought dismissal of the proceedings for want of jurisdiction, predictably argued for the higher threshold, namely the wife was required to show not only habitual residence at the date of her application, but also for at least a year prior to the divorce application (rather than pure residence).

The most relevant parts of HHJ Hess’s judgment are as follows:

‘10 … This is a re-raising of the argument which used to raise its head from time to time in relation to the proper construction of the different wording which appeared in EC Council Regulation 2201/2003, article 3, indent 5. It is well known that there were different judicial conclusions about this – on the one side Marinos v Marinos [2007] EWHC 2047 and on the other side Munro v Munro [2007] EWHC 3315 – and the issue was never conclusively resolved in English law before the United Kingdom left the European Union and the regulation ceased to apply in England. Having considered Mr Ifere’s argument on this, and having read the judgment of Sir Jonathan Cohen in KV v KV (no.2) [2024] EWFC 359 which he asserted as support for his proposition, I have not been persuaded that the arguments about indent 5 have any resonance in the post-Brexit era. The wording of indent 5 was markedly more ambiguous than the wording of Domicile and Matrimonial Proceedings Act 1973, section 5(2)(d) and I do not read Sir Jonathan’s judgment as his intending to resurrect the earlier pre-Brexit argument.

11 I agree with Mr Scott that the wording of section 5(2)(d) is tolerably clear. The section requires the applicant to show habitual residence as at the date of the application and also residence (but not habitual residence) for at least one year immediately before the application was made. …

12 I agree with Mr Scott that this interpretation is supported by the change in Domicile and Matrimonial Proceedings Act 1973, section 5(2) which was made by the Brexit regulations … Prior to 1 March 2001 section 5(2) read:-

“(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and 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 through out the period of one year ending with that date.”

This was replaced by a different formulation in 2001. After 31 December 2020, the wording of section 5(2)(d) was changed to the version set out above. I agree with Mr Scott that the change in wording – written at a time when the Marinos versus Munro debate was well known – should properly be taken as a deliberate endorsement of the proposition that what was required for the year prior to the application was mere residence, not habitual residence. If Mr Ifere’s interpretation of this were correct, the old wording of section 5(2)(b) could simply have been revived.’ (original emphasis)

So, a clear victory for Marinos.

Conclusion

HHJ Hess does not, however, appear to have been referred to either J v A or TI v LI and was not thus forced to deal with the purposive arguments put at their highest and/or the CJEU decision in Case C-462/22 BM v LO (in so far as relevant per s 6(2) European Union (Withdrawal) Act 2018).

There is clearly some force in the purposive arguments.

The Explanatory Memorandum to the Jurisdiction and Judgments (Family) (Amendment Etc.) (EU Exit) Regulations 2019 (SI 2019/519) states as follows at paragraph 7.7:

‘For divorce etc jurisdiction, this instrument revokes (for England and Wales and Northern Ireland) Brussels IIa and replicates the rules for establishing divorce jurisdiction set out in Article 3 of Brussels IIa, with the appropriate drafting changes necessary to account for the UK no longer being an EU Member State (including omitting the Brussels IIa joint application jurisdiction rule, which is not applicable because joint application for divorce by both parties is not available in England and Wales and Northern Ireland). It extends the additional jurisdiction rule of sole domicile available for non-EU cases to all cases (currently sole domicile is available where no EU court would have jurisdiction under Brussels IIa).’

And as Recorder Allen KC referred to in TI v LI, in Case C-462/22 BM v LO, the CJEU held as follows:

‘The answer to the question referred is that the sixth indent of Article 3(1)(a) of Regulation No 2201/2003 must be interpreted as meaning that that provision makes the jurisdiction of the court of a Member State to hear an application for the dissolution of matrimonial ties subject to the condition that the applicant, who is a national of that Member State, provides evidence that he or she has acquired a habitual residence in that Member State for at least six months immediately prior to the submission of his or her application.’

As raised in the Memorandum above, s 5(2) did not immediately replicate the fourth indent: ‘in the event of a joint application, either of the spouses is habitually resident’. At the time, no such joint procedure existed in our jurisdiction. However, on creation of the joint divorce application procedure, s 5(2)(ca) was duly inserted from April 2022 pursuant to the Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022 (SI 2022/237). The wording is of course markedly similar to the fourth indent: ‘in a joint application only, either of the parties to the marriage is habitually resident in England and Wales’. So, this would be suggestive again of an attempt to replicate Art 3 Brussels IIA.

On the other hand, it is arguably questionable whether the outcome in AO v EO would have been any different had these arguments been made. HHJ Hess’s reasoning in AO v EO appears to follow the same line as Munby J’s in Marinos and Peter Jackson J’s in V v V, namely the plain reading of the subsections provides the answer: the subsections quite clearly distinguish between two different concepts, namely habitual residence and pure residence. Moreover, they now do so in a much less ambiguous way than under the fifth and sixth indents. The avenue available to Bennett J in Munro regarding the possible interpretation of Art 3, as reiterated in Tan v Choy, is clearly no longer available without some strong reinterpretation of the new provisions.

The immortal words of Tindal CJ in the Sussex Peerage case (1844) 11 Cl & Fin 85 may well be apposite:

‘My Lords, the only rule for the construction of Acts of Parliament is that they should be construed according to the intent of Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute and to have recourse to the preamble which, according to Chief Justice Dyer, is “a key to open the minds of the makers of the act and the mischiefs which they attended to redress”.’

It could therefore be argued the departures from the Brussels IIA indents must be seen as being purposeful in themselves. If it had been intended to refer to just one concept, namely, habitual residence throughout, particularly given the prevailing, widely recognised and long-term Munro versus Marinos debate, the legislation could easily have done so (by the insertion of one word alone: ‘habitual’). Indeed, as our legislation prior to 2001 clearly did.

A draft of the Jurisdiction and Judgments (Family) (Amendment Etc.) (EU Exit) Regulations 2019 was prepared by the Ministry of Justice and laid before Parliament under Sch 7, para 1(1) European Union (Withdrawal) Act 2018.

Section 15(2), which sought to amend s 5 Domicile and Matrimonial Proceedings Act 1973, went unchanged after a lengthy consultation process. The Explanatory Memorandum confirms at paragraph 10.2:

‘The Government’s no deal legislative options have been discussed with key family law stakeholders and leading family law practitioners from October 2016 to December 2018 prior to finalising the policy position set out in this instrument. The Government considered that for this technical area of law it was appropriate to discuss with specialist stakeholders and practitioners.’

It is understood at least Resolution’s Brexit Working Party’s Report indicated the draft appeared to adopt the Marinos approach. This supports the observation of HHJ Hess that the Marinos versus Munro debate was well known and the drafting ‘should properly be taken as a deliberate endorsement of the [Marinos] proposition’.

It also cannot be said when the legislation was amended the intention was to replicate the rules in carbon copy, otherwise the sole domicile ground wouldn’t have been given the same status as the other jurisdictional bases, although: (1) it would have been strange to retain a residual ground that only applies if no EU member state has jurisdiction post-Brexit; and (2) as above the Explanatory Memorandum does expressly mention this as one of the differences in the new domestic legislation. The overall effect by the inclusion of the sole domicile ground is a lowering of the jurisdictional threshold. This again appears more compatible with the Marinos approach.

The upshot of all of the above is the correct interpretation of these grounds of divorce jurisdiction remains uncertain pending a decision from the higher courts. In the meantime, as we approach the 20th anniversary of Marinos and Munro, it seems the great debate somehow continues.

[[1]]: Bennett J specifically recorded ‘this particular point was not fully argued before me … I accept that my expiation on this topic may possibly not be justified and, indeed, may even be unsound. I can only plead in mitigation for any error on my part that, having been perched almost at the top of the skyscraper which is the Civil Justice Centre in Manchester, I am unaccustomed to such rarified air’.

[[2]]: Holman J similarly circumvented the issue in Olafisoye v Olafisoye (Jurisdiction) [2010] EWHC 3539 (Fam), [2011] 2 FLR 553.

[[3]]: For instance in both V v V [2011] EWHC 1190 (Fam), [2011] 2 FLR 778 per Peter Jackson J and at first instance in Orenga de Gafforj v Orenga de Gafforj: see [2018] EWCA Civ 2070. It was also favoured in Scotland: see Williamson v Williamson 2010 SLT (Sh Ct) 41.

[[4]]: It is understood this same argument was run by Stewart Leech KC (who also appeared in Pierburg) to obtain permission(s) to appeal in Orenga de Gafforj.