Analyzing Legal Text - Case Study Example

Introduction: The case of Mark v. Mark presents an interesting concept of what happens when a husband and wife are married in one country and move into another (namely, Britain), while not becoming complete, naturalized citizens in Britain. Much of this case came down to the amount of time the couple had spent in Britain, especially the wife. The jurisdiction did fall in Britain in the end, primarily because of one rule, and because of the fact that one of the two partners had resided for longer than a year in Britain. In fact, both partners had; however, for the ruling of the case, only one partner's status was really necessary at this point. Still, the question of whether the divorce should have gone through in Britain or in Nigeria was the initial problem, and the analysis presented below gives an overall summary of the situation. Since the couple was originally from Nigeria, and the wife had been spending the majority of her time in Britain and had decided not to return to her home in Nigeria, she filed for divorce in Britain. Her husband, however, did not agree with this, and moved for a stay, stating that the proceedings should be decided in Nigeria. The following provides an overview of this case, and what and why the British court decided the way it did. Summary: The two individuals involved in this case are from Nigeria, born in that country in 1948 and 1950 respectively. They were married by the law of the River State of Nigeria in 1979; the marriage at that time was considered valid and polygamous, since the husband had married at least two other wives prior to this one, and possibly two more after. Between this particular couple, there were four children, all born in the United Kingdom. All four children have been granted British citizenship. The husband in this particular case served in the Nigerian army, and became a General as well as becoming involved in the government following the military coup of 1983. During this time period, he was able to become quite wealthy. He was posted to Washington in 1990. The wife, on the other hand, had been a lawyer that had practiced in Nigeria. When her husband went to Washington, she proceeded to take classes at Queen Mary College in London, spending time either at school, in Nigeria, or with her husband. She had obtained multiple entry visas and was able to come to Britain for up to six months at a time until March of 1997. Another coup occurred in November 1993, and the husband did not agree with the new ruler, General Abacha. Therefore, he left the army and decided to leave Nigeria for Britain. The couple then proceeded to establish a domestic home here. The husband was able to obtain a four year work permit that would allow him to remain in the country for that time. The wife was also allowed to stay for a longer period of time than her multiple entry visa originally allowed. After this, the husband was given indefinite leave to stay in Britain because of two of the children. The wife was out of the country, in Florida at the time, and was not included in this decision. When she wanted to return, she was allowed to enter for one day, but she stayed longer. This meant that she had become an over-stayer and was violating sections 24(1)(b) and 24A of the Immigration Act 1971. However, she was eventually granted indefinite leave, but only after the case between she and her husband had started. In June 1998, General Abacha died, so the husband came back to Nigeria to once again pursue politics. He eventually became a Senator in the Upper House of the Nigerian Parliament. However, he still made trips to Britain so that he could visit his wife and children. However, as time passed, the wife in this case gave up hope of coming back to her home country as the most important wife to the husband, and therefore decided to stay in Britain. The wife then issued a divorce petition on July 17, 2000. When she did that, she only focused on her current residence in Britain to discover the court jurisdiction; this was later fixed to add a claim that she also acquire a domicile of her choice in Britain. Initially the husband agreed that the British court should hold the case, but then, in February 2001, he decided to file a stay, saying that he had also started divorce proceedings in Nigeria. In March 2002, Hughes J decided that the British court had jurisdiction over the decision. The problem was, however, by that time the husband was truly arguing that the British courts did not have the right to decide the case. He stated that his wife's stay in the country and her divorce petition both did not follow the law. Hughes J, in June 2002 decided: "that the wife could not rely upon her unlawful presence as a basis for establishing habitual residence here but that she could rely upon it as a basis for the acquisition of a domicile of choice" (Mark v. Mark). Therefore, the Court of Appeal dismissed the husband's request. Now the argument moved to whether or not the wife would be a resident or whether or presence was unlawful. According to the website: The issue, therefore, is the impact of that illegality on the jurisdictional requirements set out in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. This has since been amended to give effect to the Council Regulations EC No 1347/2000 and EC No 2201/2003, but at the material time, it read as follows: The court shall 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 (Mark v. Mark). Lord Scarman, with the approval of the other members, stated: Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration (Mark v. Mark). This was chosen because it was the "simpler" test for habitual residence. Therefore, again, Britain had decided that it had jurisdiction over the divorce proceedings. Statutory Interpretation In this case, there were several different approaches to defining the statutory interpretation of establishing the residence of the wife, and also deciding whether or not the divorce proceedings should take place in Nigeria or Britain. Because the wife had already decided to remain in Britain, had obtained the necessary legal status, and had also lived on and off in Britain for some time both with and without her husband, the British courts felt that they had the proper jurisdiction. She had spent the majority of her time in Britain, and had no plans to return to her native country. In fact, she had not been to Nigeria for some time by the time the court case actually began. While the husband did attempt to start divorce proceedings in Nigeria because, he felt, they should dissolve their marriage in the country in which it took place, the wife no longer spent much of her time in Nigeria, and had, by this time, made Britain her primary home. Furthermore, her husband had also spend a significant amount of time in Britain during his exile, so the fact that the couple most recently lived together in Britain also established the rights of the British court to analyze the divorce proceedings. The British court also sided with wife and the fact that the case should be decided in Britain because of the fact that she was residing in Britain when she had decided to finally file for divorce. The fact that she had also been in Britain for a large amount of time further solidified their decision. She had no desire to leave and return to Nigeria, and wanted to live as a British citizen, but recognized as a single woman in the country of Britain. In order to obtain this status, it would be necessary for her to get that permission through the British courts. Therefore, the British courts felt that they should have the final say as far as the court case was concerned. Two important statues come to light here. The first was the fact that the wife initially overstayed; sections 24(1)(b) and 24A of the Immigration Act 1971. However, because she then went about legal ways to solve her problem with overstaying, she was relieved of this issue and the breech of contract was not necessarily considered a big part of the case. Had she not gotten this issue solved prior to coming to court, there may have been a bigger issue as far as this concept is concerned. The act that was of primary importance here was section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. This has since been amended to give effect to the Council Regulations EC No 1347/2000 and EC No 2201/2003. Now, the Proceedings Act reads that if one of the individuals is present in Britain for more than a year during the marriage, than the court has jurisdiction over the separation. This is what ultimately allowed the wife to win her case, and the reason why the husband was not allowed to bring his case back to Nigeria. Britain had a law enacted that stated they had jurisdiction over the divorce proceedings because of the status of the wife (furthermore, at one point, the husband had lived in Britain for a long length of time as well). Regardless, there was only the need for one of the two spouses to have stayed in Britain for over a year, and clearly, the wife had stayed in Britain and furthermore planned to stay in Britain above and beyond that time. Policy Policy reasons were actually very important to this case for a few issues. First, the policy of obtaining permission to be in Britain at the time for the wife helped to decide where the divorce proceedings should take place. She had committed a crime when she overstayed, but she did remedy this situation and obtained legal status to be in Britain. With her legal status and the lack of her desire to return to Nigeria, the policy concerns actually fell in her favor. Furthermore, the fact that the husband was attempting to argue that a marriage that took place in Nigeria should be dissolved in Nigeria was yet another policy issue. While the husband had a valid point in his argument, the fact that both he and especially his wife had spent such a long time in Britain (even together at one point) and because the wife had decided to stay in Britain and not return to Nigeria, Britain felt that it had the right to decide the divorce, and ruled on that. Since there was property involved in Britain that the wife was most interested in, or it can at least be assumed so, and because the children were all nationalized British citizens at this point further demonstrated reasons why Britain should be able to establish the ruling of the divorce, and why the divorce proceedings should not have returned to Nigeria. For the wife, being divorced in Nigeria would not necessarily help her status as a single woman in Britain. This was certainly a main point when the case was being decided upon. Since she no longer had any desire to live in Nigeria and wanted to stay in Britain, her status in Britain was the most important issue in this case. The fact that the husband had filed a stay for the proceedings and had also filed in Nigeria did not change the mind of the British court. Perhaps if the couple had not spent so much time in Britain, or if the wife would have wanted to return to Nigeria, the court would have decided differently. However, since this was not the case, the court decided to handle the divorce proceedings themselves. Conclusion: Therefore, in the opinion of the British court, the most important fact to focus on was the status of the wife, who had initially filed for divorce, and her plans to stay in Britain. While she did initially violate the laws by overstaying, she did take the necessary action to overcome this, and this basically undid any of the damage she had previously done by her initial period of overstaying. Her legal pursuit may have been what saved her in the end, since that worry was dropped from the overall case and argument, and the court moved onto find a different conclusion. Since she had obtained legal status, she did have a right to use the courts in Britain, and since she planned to stay in Britain, there appeared to be no need to allow the Nigerian courts to get involved. While the husband did not agree with this finding, the fact that the British courts had analyzed the information in response to other cases helped to set the standard. If an individual has chosen to stay in Britain and does have legal status, he or she should have the right to use the courts as such. For instance, if that individual underwent a theft while in Britain, it would be assumed that because the theft occurred in Britain, the British courts would handle it, even if the citizen was Nigerian. In this case, since the decision to end the marriage took place while in Britain, and while the wife was also legally allowed to stay in Britain and planning to stay in the country, the British courts agreed that they should handle this issue. The case ultimately rested on section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. This has since been amended to give effect to the Council Regulations EC No 1347/2000 and EC No 2201/2003. Because the wife had lived in Britain for over a year, the jurisdiction therefore, according to Britain, fell to the British courts. Furthremore, the husband had also lived in Britain for some time before he had returned to Nigeria for the second time. This means that his actions, too, fell under this rule, although only one of the two partners needed to fall under this rule in order for Britain to take the case. Therefore, the husband was not able to move the proceedings to Nigeria, and the case had to remain in Britain. Works Cited Mark v. Mark. 2005. 29 June 2009. http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd050630/mark-1.htm Read More