Tim Scott KC appears in AO v EO [2026] EWFC 30 (B)

26 February 2026

This was a textbook jurisdiction and forum case. The parties are Nigerian. They lived in Nigeria until their marriage in 2001 and afterwards until 2012 when they obtained Tier 1 investor visas to live in the UK. From that time W and the children were mainly based in England. The parties’ third child was born in England in 2014. In 2016 they bought a house in England which was rebuilt at great expense as a family home and which became (probably) the most valuable asset in the case. However, H continued to be employed in Nigeria where there were also family businesses. 

By 2021 W was worried about the state of the marriage and she and the youngest child moved to Nigeria to be with H. In September 2023 the parties separated finally. In January 2024 W moved back to England. In May 2024 she started judicial separation proceedings in Nigeria, but in January 2025 she withdrew these and made a divorce application in England. H countered with divorce proceedings in Nigeria.

Jurisdiction. The only jurisdictional basis which W relied on was that she was habitually resident in England at the date of the application and had resided there for at least one year immediately before that. H argued that this required her to prove that she had been habitually resident in England during the one year period immediately before the application. 

It will be recalled that in relation to the similar (but not identical) jurisdictional provision in the Brussels II Revised Regulation there was a difference of judicial opinion as to whether the residence for one year before the proceedings needed to be habitual in character; or whether mere residence was enough. This was known as the Marinos / Munro debate. 

Judge Hess found that in the current (post-Brexit) version of the statute the one year period of residence does not have to have been habitual. If the intention had been to require a one year period of habitual residence, the Parliamentary drafter could have reverted to the pre-Brussels II version of the statute in which that requirement was spelled out. Conversely the present wording does not say that. On the facts of this case W satisfied the present residence requirements.

Forum. The decision on forum was more finely balanced. There were strong links with both jurisdictions. However, at this stage the onus was on H to show that Nigeria was the more appropriate jurisdiction for the divorce and financial proceedings. H particularly relied on the fact that since the breakdown of the marriage W had started several civil actions in Nigeria to preserve matrimonial assets. He argued that this showed that W had confidence in the Nigerian courts.

However, Judge Hess found that H had not succeeded in showing that Nigeria was the more appropriate forum. The family’s links with England were strong and W had relocated back to England in January 2024. The very valuable family home is in England. The expert evidence on Nigerian law suggested that the powers of the Nigerian court to delve into H’s financial affairs were not as extensive as those of the English court. W’s civil actions in Nigeria could be taken into account in English FR proceedings. 

Outcome. H’s challenges to both jurisdiction and forum were dismissed. Judge Hess gave directions for the progress of W’s substantive FR application. H was ordered to pay W’s costs of the jurisdiction and forum dispute, summarily assessed at £75,000. 

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