AO v EO: defining the natural forum post-Brussels IIa

The judgment in AO v EO [2026] EWFC 30 (B), delivered by HHJ Edward Hess in the Central Family Court on the 6 February 2026, addresses two central questions of international family law: 1) jurisdiction – whether England & Wales had jurisdiction to entertain the wife’s divorce petition pursuant to section 5(2)(d) of the Domicile and Matrimonial Proceedings Act (DMPA) 1973, and 2) forum non conveniens – whether Nigeria was the more appropriate forum for the parties’ divorce and financial remedies proceedings

The case constitutes one of the most detailed post‑Brexit examinations of habitual residence and residence under the amended jurisdictional framework applicable since the removal of EU Brussels IIa structures.

The parties, both Nigerian‑born, married in Nigeria in 2001. They have three children, two of whom are in further education with a younger child attending secondary school. The family lived in Nigeria until 2012, when they moved their family home to England under a Tier 1 Investor Visa, purchasing and later extensively renovating a high‑value Surrey property. The marriage deteriorated and from September 2021 the wife temporarily shifted her life to Nigeria in an attempt to save the relationship, moving the youngest child from a fee-paying school in England to an International school in Laos. The couple finally separated in September 2023, after which the wife planned her return to England.

A central, factual issue concerned the wife’s movement between Nigeria and England between 2021–2024, particularly whether she had remained resident in England and, crucially, whether by January 2024 she had re‑acquired habitual residence in England.

The wife issued a judicial separation petition in Nigeria (May 2024), later discontinued; and then an English divorce application on 14 January 2025, followed by a Form A on 20 January 2025.

The husband countered by asserting that the wife was habitually resident in Nigeria, claiming England had no jurisdiction and Nigeria was the more appropriate forum. He also filed divorce proceedings in Nigeria which at the date of the hearing were still live, although subject to a Hemain injunction made in the Central Family Court prohibiting him from progressing those proceedings.

The jurisdiction question

Under DMPA 1973 s5(2)(d), England & Wales has jurisdiction if, on the date of the application the applicant is habitually resident in England & Wales; and the applicant has resided (not habitually resided) there for at least one full year immediately preceding the application.

The husband argued that “resided” implied habitual residence, resurrecting the historical Marinos versus Munro debate from the Brussels IIa era.

HHJ Hess rejected this entirely on the grounds that:

• the Brexit‑era amendments deliberately removed the requirement of habitual residence during the preceding year
• the statutory language is clear and distinct: habitual residence at the date of issue; residence (a lesser threshold) for the preceding 12 months

This interpretation aligns with the linguistic and structural shift made in 2020 when the former section 5(2)(b) (“habitually resident throughout one year”) was replaced.

HHJ Hess found:

• the wife was habitually resident in England from 2012–2021
• she became habitually resident in Nigeria from September 2021–14 January 2024
• at 5:00am on 14 January 2024—the moment she landed in England—her habitual residence shifted back to England
• she also remained resident in England throughout 2012–2025, even during periods living partly in Nigeria

Thus, at the time of her divorce petition (14 January 2025), she had been habitually resident for one year; and she had resided in England continuously for at least a year. The English court therefore had jurisdiction.

The forum issue

Having found jurisdiction, the court turned to whether proceedings should nonetheless be stayed under DMPA 1973 s5(6) and Sch 1 and applying Spiliada, De Dampierre, and Chai v Peng. The court considers fairness, convenience, and all circumstances. A stay is granted only where the foreign forum is clearly or distinctly more appropriate. A party resisting a stay may rely on legitimate juridical advantages.

HHJ Hess concluded that England had been the family’s centre of life since 2012 given:

• the children schooled almost exclusively in England
• the Surrey home was the primary, long‑term family home
• all parties used the English healthcare system
• two children and the wife obtained British citizenship; the husband holding indefinite leave to remain (ILR)

The judge also considered it significant that the Surrey property, worth £3m-£4.5m, constituted over half of the marital asset base and that a needs‑based assessment would naturally anchor the case in England.

The parties had obtained a single joint expert report from a Nigerian lawyer to assist the court is understanding how the parties’ matrimonial claims would be dealt with in Nigeria. He found of particular significance that there was:

• limited ability to compel full and frank disclosure in Nigeria
• absence or rarity of MPS, LSPO, and litigation loans
• more limited tools to address non‑disclosure (eg questionnaires, third‑party disclosure, adverse inferences)

These distinctions were crucial given the husband’s notable unwillingness to disclose his financial dealings. Further, although the wife had four Nigerian civil claims relating to alleged property fraud and shareholding disputes, the judge agreed with the applicant’s position that these were primarily to preserve assets from dissipation; they could run alongside English proceedings without difficulty; and any ultimate value could be offset within an English award.

Conclusion

HHJ Hess concluded that Nigeria was not a more appropriate forum—neither clearly nor on balance. England was the natural and proper forum, and the Hemain injunction was continued until conclusion of English proceedings.

This judgment provides one of the clearest judicial treatments of habitual residence versus residence under DMPA 1973 in the post‑EU era. HHJ Hess adopts a purposive and unambiguous reading:

• habitual residence: qualitative, singular, centre‑of‑life test
• residence: lower threshold, may be multiple, and satisfied even where time is split internationally

This ensures clarity in cases involving transnational families and avoids resurrecting the inconsistent Marinos line of authority. The judgment illustrates the modern acknowledgment that habitual residence can shift rapidly, and is based on intention paired with objective acts, mirroring the analysis in Pierburg v Pierburg [2019] EWFC 24.

The judge’s precise identification of 5:00am on 14 January 2024 as the pivotal moment demonstrates the increasing judicial willingness to pinpoint habitual residence transitions with exactness where evidence supports it.

This decision also reflects an English court increasingly alive to the practical realities of disclosure; the importance of procedural tools; and the risk of financial opacity in high‑value international cases.

The finding that England is the preferred forum not because Nigeria is inadequate per se, but because English procedural mechanisms better secure justice, will be influential.

This case has wider implications for family lawyers:

• counsel and solicitors must prepare robust evidence of centre of life, intent and pattern of residence
• international families with high‑value English assets will likely see England prevail as the natural forum
• courts may more readily identify dual residence, giving applicants greater success in meeting the residence limb of section 5(2)(d).

AO v EO is a significant post‑Brexit family law judgment. It clarifies the jurisdictional threshold under the amended DMPA 1973 regime and reinforces England’s readiness to retain proceedings where procedural fairness, disclosure and asset location make it the natural forum.

Nadia Beckett, Beckett Solicitors

Nadia instructed Tim Scott KC for the applicant wife in AO v EO.

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