SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT STIRLING - A919/06
JUDGEMENT
Of
SHERIFF THOMAS WARD
in causa
MISS TATIANA CHEBOTAREVA (Assisted Person )
residing at 40 Maurice Avenue
STIRLING
FK7 7UD
PURSUER
against
DORJE KHANDRO
The Executrix of the Estate of JAMES MICHAEL KING otherwise
known as JAMES COLLINS otherwise known as MALCOLM MARSHALL,
otherwise JOSS KING residing care of Messrs Rice - Jones & Smiths
7 Ely Place, LONDON
DEFENDER
STIRLING March, 2008
The Sheriff, having resumed consideration of the Proof and whole cause finds in fact:-
1. James Michael King was born on 15th January 1951. He died without a Will on 30th May 2006. He was also known during his lifetime as James Collins, otherwise Malcolm Marshall, otherwise Joss King. He died on 30th May 2006 at 5 Plender Street, Camden Town, London NW1. His Death Certificate records his usual address as 31 Medburn Street, Camden Town, London NW1. The Defender is the deceased`s sister. She is a Buddhist nun.
2. The Pursuer Tatiana Chebotareva is a failed Asylum Seeker. She has no current entitlement to be in the United Kingdom. All her appeal rights were exhausted on 7th December 2004. She commenced a relationship with James Michael King in early 2002 in London which continued until his death on 30th May 2006 .
3. James Michael King attended Stirling University in the early 1980's during which time he resided in Stirling and Edinburgh. Between 1980 and 1990 James Michael King lived in Edinburgh, Stirling and London. From 1990 James Michael King rented a room as a lodger at Bankhead Farm, Dalmeny, South Queensferry, Edinburgh. During that period he also resided in London.
4. In January 2000 James Michael King obtained his own accommodation at Bankhead Farm and he remained a tenant there from January 2000 until June 2005. During June 2005 James Michael King was required to leave the property at Bankhead Farm and returned to London.
5. After leaving the property at Bankhead Farm, James Michael King visited his property at 40 Maurice Avenue, Stirling on very few occasions. That was a property which he purchased in 1985. James Michael King also had another property at 34 Maurice Avenue which he purchased in or around 1990. As a result of James Michael King's sequestration the property at 34 Maurice Avenue was sold to a third party. Although the property at 40 Maurice Avenue was sold to James Michael King's then girlfriend Savati Smith, James Michael King bought that property back using the pseudonym Malcom Marshall. He therefore owned the property at 40 Maurice Avenue, Stirling at the time of his death.
6. James Michael King also owned a property at 31 Medburn Street in London and leased premises at 315 Panther House, Mount Pleasant, London. He used the property at 315 Panther House as a workshop unit. He also frequently resided there.
7. Between 28th November, 2000 and 9th May, 2006 James Michael King signed on as unemployed either at the Camden Job Centre or Marylebone Job Centre, London with the exception that on three occasions when he registered as unemployed at Dundee Job Centre.These occasions were 2nd December 2002, 8th January 2003 and13th January 2003
8. James Michael King's address on the Electoral Register at the time of his death was 5/6 Plender Street, London. That was the place of his death also.
9. On 16th November 2003 James Michael King advised Stirling Council that he did not reside at 40 Maurice Avenue, Stirling and that the property was vacant. Up until his death he claimed a discount on his Council Tax on that basis.
10. Until 29th May, 2006 James Michael King claimed and received Council Tax benefits in respect of the subjects at 31 Medburn Street, London.
11. Until 30th May, 2006 James Michael King was In receipt of Income Based Jobseeker's Allowance. In claiming this he declared that he resided at 31 Medburn Street, London. His Jobseeker's Allowance included a provision for monthly mortgage payments in respect of 31 Medburn Street, London. In about January 2005 James Michael King using the alias Malcolm Marshall registered to vote on the Camden Electoral Register using the address Flat C, 5/6 Plender Street, London NW1 OJT. In December 2004 the Pursuer registered to vote on the Camden Electoral Register using the address Flat A, 5/6 Plender Street, London NW1 OJT.
12. From 2000 until May 2005 James Michael King was registered in the Voter's Roll via his address at Bankhead Farm Bankhead, Dalmeny, South Queensferry, West Lothian EH30 9TN.
13. On 30th May, 2006 James Michael King using the alias "Mr Jackson" leased from Yardworth Ltd room number 315 Panther House, Mount Pleasant, London.
14. Between 2000 and 2005 James Michael King rented accommodation at Bankhead Farm, South Queensferry.
15. James Michael King operated a Sainsbury's Bank Credit Card, a Cheltenham & Gloucester Savings Account and a Halifax Bank Account from his address at Bankhead Farm, South Queensferry in the name of Malcolm Marshall.
16. From 3rd April until his death James Michael King held an account with the Leeds Permanent Building Society in the name of James M King, 31 Medburn Street, London NW1 1RH.
17. At 30th May, 2006, James Michael King had a credit card account with Abbey in the name of James King, 31 Medburn Street, London.
18. On 30th May, 2006, James Michael King held a savings account with the Britannia Building Society in the name of D Collins, 31 Medburn Street, London.
19. On 30th May, 2006, James Michael King held an account with the Nationwide Building Society in the name of J King, 31 Medburn Street, London.
20. Number 6/4 of Process is a copy electricity bill relative to the property at 40 Maurice Avenue, Stirling for the period 16th February, 2004 to 16th October, 2005. The bill shows, for a period of eight months an electricity bill of £6.43.
21. Number 6/5 of Process is an electricity bill relative to the property at 40 Maurice Avenue, Stirling for the period 17th October, 2005 to 3rd October, 2006. That bill shows that the previous bill of £6.43 was not paid and shows electricity charges for a period of approximately one year of £21.64 and a total bill of £29.15.
22. By letter dated 6th October, 2004 City and Islington Sixth Form College indicated that the Pursuer, Tatiana Chebotareva was a full time student at the Sixth Form College. At that time she was studying for A Levels in Philosophy and Maths.
23. By letter dated 6th February 2008 City and Islington College confirmed that the A Level courses taught at the college require attendance from students and that the college did not teach by distance learning.
24. Number 6/14 of Process is the decision of Mr R C Campbell, Adjudicator in the Immigration Appellate Authority. That Hearing took place on 7th September 2004. In that case the Pursuer gave her address as Plender Street, London. James Michael King gave evidence on her behalf using the pseudonym Joss Collins, giving his address as 5 Plender Street, London. In that Determination at Paragraph 40 the Pursuer confirmed that she attended college in London and had a relationship with Joss Collins in London.
25. By letter dated 23rd January, 2008 the Home Office confirmed to Messrs Caesar & Howie, Solicitors that the Pursuer's address prior to moving to 40 Maurice Avenue, Stirling were all addresses in London.
26. James Michael King died without issue and was survived by his sister Marcia Christina King now known as Dorje Khandro and a brother of half blood, namely Adrian King.
27. James Michael King's domicile of origin was England.
28. James Michael King's domicile was England which was his domicile of origin. His domicile did not change.
29. James Michael King was not habitually resident on 30th May, 2006 within the Sheriffdom of Tayside Central and Fife.
30. At the time of his death James Michael King was co-habiting with the Pursuer within the definition of Section 25 of the Family Law (Scotland) Act 2006.
FINDS IN FACT AND LAW
The deceased at the date of his death not being habitually resident in the Sheriffdom of Tayside Central and Fife at Stirling and not immediately before his death being domiciled in Scotland the Sheriff court at Stirling has no jurisdiction.
THEREFORE sustains the First Plea in Law for the Defender; Finds it unnecessary to deal with the Pusuers pleas in law; Finds the Pursuer liable to the Defender in the expenses of the action. Appoints an account thereof to be given in and Remits the same, when lodged, to the Auditor of Court to tax and to report.
NOTE
In this case the Pursuer Ms Tatiana Chebotareva seeks an order for transfer of the deceased James Michael King's Estate's right, title and interest in the heritable property at 40 Maurice Avenue, Stirling FK7 7UD into the sole name of the Pursuer. She does so in terms of Section 29 of the Family Law (Scotland) Act 2006.("The Act")
Failing transfer, or in addition to transfer she seeks an order that the deceased's Estate shall pay to her a capital sum totalling £50,000 or such other sum as the court shall deem appropriate.
This case came before me as a Preliminary Proof Before Answer. The matters in dispute were threefold. The first issue was whether the deceased at the time of his death was habitually resident within the Sheriffdom of Tayside Central and Fife. The second question was whether the deceased was domiciled in Scotland at the time of his death. The third question was whether the Pursuer and the deceased were cohabitees in terms of the Act.
The relevant parts of Section 29 are as follows:
Section 29 (1) (b) applies where
immediately before the death the deceased was-
(i) domiciled in Scotland; and
(ii) cohabiting with another cohabitant (the "survivor").
Section 29 (5) (b) states "An application under this Section may be made to (b) a Sheriff in the Sheriffdom in which the deceased was habitually resident at the date of death.
It was agreed when parties made their submissions before me that if the deceased was not habitually resident within the Sheriffdom of Tayside Central and Fife or was not domiciled in Scotland then the Pursuer's case would fail. I have come to the conclusion that the deceased was not habitually resident at 40 Maurice Avenue, Stirling at the date of death and I am also satisfied that the deceased was not domiciled in Scotland. That is sufficient to deal with the preliminary matters and dismiss the Pursuer's case. As a result I do not require to consider the Pursuer`s pleas in law. The reasons for my conclusions are as follows.
Habitual Residence
1. I did not believe the parties to be in dispute as to the meaning of habitual residence. The Pursuer's solicitor referred me to the case of Penny Dickson -v- James Dickson 1990 SCLR 692 and the words of the Lord President at Page 703 Section B where he stated "It is enough to say that our opinion of habitual residence is one which is being enjoyed voluntarily for the time being and with the settled intention that it is to continue for some time". The Defender's solicitor referred me to the case of Morris -v- Morris 1993 SCLR 144 at Page 145 where Sheriff Principal Macguire stated "Habitual residence has not been defined. At the end of the day it is a question of fact. Without seeking to lay down any definition I would consider that it encompasses the idea of where the person normally lives". I was also referred to the case of Cameron v- Cameron 1996 SLT 306 at Page 313 where the Lord Justice Clerk (Ross) said the following "In order to establish a new habitual residence, it is not necessary to show that when the child moved to the new country there was any intention to reside there permanently. Nor need there be any intention to reside there indefinitely. It is sufficient if there is an intention to reside there for an appreciable period".
2. The Pursuer's case is that between Summer 2002 and May, 2005 she and the deceased resided at Bankhead Farm South Queensferry. Between May 2005 and July 2005 the Pursuer claims that she and the deceased gradually moved their possessions from Bankhead Farm to the deceased's property at 40 Maurice Avenue, Stirling. That move was completed by around July 2005 and from that point until his death on 30th May, 2006 the deceased was habitually resident at 40 Maurice Avenue. Regular trips were made to London to enable the deceased to sign on. Initially these were made by motor vehicle and latterly by the Megabus. When they lived in Stirling they lived in the backroom of the flat, used very little electricity and avoided the neighbours. During that period they were visited by Mr & Mrs Shepherd who were friends of the deceased and latterly friends of the Pursuer. The Defender's position is that the deceased was habitually resident in London at the date of his death. In support of that contention it was pointed out that the deceased was born in London, died in London and his domicile of origin was in London. He owned property at 31 Medburn Street, London and in that property there was food and other things of occupancy. He claimed Jobseeker's Allowance in London. He attended the Marylebone Job Centre, London on a fortnightly basis. He also leased a workshop in London and was registered to vote there. In addition on 7th September, 2004 he told an Immigration Adjudicator that he was residing in London with the Pursuer. The deceased sold books on Ebay and books for sale were found at 31 Medburn Street in London. According to the Defender all of this was direct evidence that the deceased was habitually resident in London.
3. It is clear from the evidence that between Summer 2002 and May 2005 the deceased on occasion visited Bankhead Farm, South Queensferry. Daniel Smith gave evidence to that effect and copies of the rent books were produced. They showed that the deceased had been paying rent for the property at Bankhead Farm. It was clear however from the evidence of Daniel Smith that the deceased did not live there permanently and I am not satisfied on the evidence before me that he was habitually resident at Bankhead Farm between 2002 and 2005. I consider it more likely that he visited Bankhead Farm during that period but was still habitually resident in London where he had his own property and his leased premises. The Pursuer claims that she lived with him at Bankhead Farm during that period. I do not accept the Pursuer's evidence with regard to that. She told the Immigration Adjudicator on 7th September. 2004 that she was living at Plender Street in London and the deceased gave evidence to the same effect. Furthermore a letter from City of Islington College dated 6th October, 2004 states that the Pursuer was a full time student at the Sixth Form College. A further letter from the same college dated 6th February, 2008 confirms that the A Levels courses taught at the college require attendance from the students and they do not teach by distance learning. I therefore do not believe the Pursuer's evidence that during the period between 2002 to 2005 she resided with the deceased at Bankhead Farm and nor do I believe that he lived there on a permanent basis.
4. Even if I had accepted that the deceased was habitually resident at Bankhead Farm from 2002 until 2005 that would not assist the Pursuer's case since I am of the view that following the termination of the deceased's lease at Bankhead Farm he was never at any time habitually resident at 40 Maurice Avenue in Stirling. According to the Pursuer she and the deceased stayed there from the Summer of 2005 until 30th May 2006. The negligible electricity bills contradict this contention. It was suggested in evidence that the deceased had somehow bypassed the meter.I am being asked to believe that the Pursuer and the deceased in essence lived a hermit's life in a flat in Stirling managing to avoid the notice of their neighbours for a period of approximately eleven months. I did not find evidence to that effect to be credible and I did not believe the Pursuer's evidence with regard to that. In my opinion the Pursuer has concocted a version of events to suit the purpose of her case as she has admitted she did in her asylum appeal. The only supporting evidence which was called came from Jamie Shepherd who was a friend of the deceased. He gave evidence of a number of visits to the deceased at 40 Maurice Avenue although the numbers fluctuated in the course of cross-examination. If the Pursuer and the deceased were at pains to avoid detection from the neighbours or any other possible debt collectors I do not believe that they would be encouraging Mr Shepherd to visit the property at 40 Maurice Avenue, Stirling even on an irregular basis.. The Defender called Mrs Agnes McInnes and Mrs Evelyn Mills as witnesses. Mrs McInnes was a downstairs neighbour of the deceased. She had seen him three times over the years. Her evidence was that she never heard a sound from upstairs. She was absolutely satisfied that the deceased was not habitually resident in that property. There was no sign of the deceased or the Pursuer. The deceased had left his car there for a matter of months before it was removed by the Council. There is no indication that the deceased or the Pursuer ever used the vehicle. The bins for the property were never put out. Another neighbour Mrs Evelyn Mills essentially confirmed the evidence of Mrs McInnes. There was no sign of life at 40 Maurice Avenue, Stirling. There was no indication that the property was occupied on a regular basis. She concluded that the property was used as a mailing address. In addition of course the deceased had declared to Stirling Council that the property was uninhabited to obtain a rebate on his Council Tax. There was virtually no electricity used in the property. It seemed to me that all of these factors militated against any finding that the deceased was habitually resident at 40 Maurice Avenue during the eleven months prior to his death. It should be remembered that the deceased in this case had a striking manner of dress. He had a "Bob Marley" hairstyle and always wore white. It seems to me inconceivable that the neighbours living in what was essentially a cul-de-sac would be unaware for a period of eleven months that the deceased and the Pursuer were staying in the property at Maurice Avenue and being visited by Mr Shepherd and his wife.
5. In my opinion the weight of evidence is against the Pursuer and I am satisfied that neither she nor the deceased resided at 40 Maurice Avenue, Stirling for any appreciable length of time. I think it would be fair to say that the evidence which I accepted showed that the deceased visited the property on perhaps two or three occasions during that eleven month period. It follows therefore that the evidence of Jamie Shepherd to the effect that the deceased and the Pursuer resided at 40 Maurice Avenue, Stirling is not accepted. I find the evidence of the two neighbours to be compelling and I reject Mr Shepherd's evidence to the contrary. In particular I find it inconceivable that Agnes McInnes who lived below the deceased's property would be unaware that the deceased and the Pursuer were living in the flat above her. Mrs McInnes was in her late seventies and did not work. In her evidence before me it was clear that she was incredulous at the suggestion that the deceased and the Pursuer were living above her without her knowing for a period of at least nine months. She stated that she would have known if someone had been living there. She confirmed that no one ever saw them and there was no noise. She concluded by stating that she would say they definitely weren't there. When it was put to Mrs Mills that the Pursuer and the deceased were living there she stated "No, I never saw them - it was only a mailing address". She further confirmed that had she believed the deceased to be living there she would have spoken to him about his car There was no one there. Nor were there any visitors to the house.
6. It follows therefore that I accept the evidence of Mrs McInnes and Mrs Mills and I reject the evidence of Jamie Shepherd that he was a regular visitor to the property at 40 Maurice Avenue since I conclude that the deceased and the Pursuer did not live there for any length of time.
7. I am therefore not satisfied that the deceased was habitually resident at 40 Maurice Avenue, Stirling.
Domicile
1. Again it seemed to me that both parties accepted the legal definition of domicile and it`s exposition in the case of Udny -v- Udny (1869) 7M(HL) Page 99. In addition I was referred to the case of Spence -v- Spence 1995 SLT 335 which adopts what is said in the case of Udny -v- Udny. I was further referred to the case of Bell -v- Kennedy (1868) 6M(HL) 69; Ross -v- Ross 1930 SC(HL) 1; Liverpool Royal Infirmary -v- Ramsay 1930 SC(HL) 88; Labacianskas -v- Labacianskas 1949 SC 280;
In the case of Udny -v- Udny, Lord Westbury at Page 99 said the following :
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the unlimited intention of continuing to reside there. This is a description of the circumstances which create or constitute a domicil, and not a definition of the terms. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as duties of office, the demands of creditors, or the relief of illness. And it must be a residence fixed not for any defined period or particular purpose but general and indefinite in its future duration. It is true that residence, originally temporary, or intended only for a limited period, may afterwards become general and unlimited and in such a case, as soon as the change of purpose or the animus manendi can be inferred, the fact of domicil is established." It was also made clear in the case of Labacianskas -v- Labacianskas 1939 SC 280 that, in the words of Lord Keith,
"To abandon the domicile of choice there must be animus et factum. There must be intention of abandonment accompanied by some Act that amounts to abandonment in fact. That Act may be mere departure from the land of the domicile of choice, if intention of abandonment is clear, without necessarily the acquisition of domicile in another country. But the evidence of intention not to return must be unequivocal and clear.... There is no onus on the petitioner to show that her husband retained his domicile if evidence of abandonment is non existent or is obscure...... and there is a presumption in favour of the continuance of an existing domicile. Therefore, the burden of proving a change lies in all cases upon those who allege that the change has occurred." What that means of course is that the burden of proof rests upon the person asserting that such a change of domicile is taking place. In this case the deceased's domicile of origin is England. It is clear as is stated in the case of Spence -v Spence that: "The authorities clearly show that in each case it is necessary to examine all the surrounding circumstances from which an inference as to the true nature of the intention of the propositus may be inferred.
2. I am not satisfied that prior to the Summer of 2005 the deceased chose Scotland as his place of domicile. I am not satisfied that he had abandoned his domicile of origin in England. It was clear from the evidence of the deceased's sister Dorje Khandro that between September 1997 and 2004 the deceased was a frequent visitor at his mother's house. It is also clear that he wanted to take over his mother's flat when she died. Dorje Khandro stated that the deceased went to Scotland three or four times a year and stayed for two, three or four days at a time. Her position was that if he had been living in Scotland she would have known about it. After his death she and Adrian King, the deceased's half brother went to the property at Medburn Street and found meat and cheese in the fridge and other food in the freezer as well. It is clear that the deceased had been living there. It is also clear from the evidence that the deceased was signing on for his benefit in London, was registered to vote in London and had correspondence addressed to him in London. In my opinion he was based there. It is also clear that he was living in London at the time of the hearing before the Immigration Adjudicator and that both he and the Pursuer confirmed that they lived at 5 Plender Street and intended to stay together. This is in spite of the Pursuer telling me in evidence that this was lies and in reality they were living in Scotland.
3. I have no doubt that the deceased had an affection for Scotland. He found that when he was in Scotland his health improved and his skin condition got better. However I am satisfied on the evidence before me that no sufficient factus and animus have been shown. The fact that the deceased had some pious hope that sometime in the future he might live in Scotland does not in my opinion show that his domicile has changed. The witness Daniel Smith who knew the deceased from Bankhead Farm suggested that the deceased had intended to effect a plan which would mean that he would be living in Scotland. As I indicated in connection with the question of habitual residence I was not satisfied that the deceased did live in Scotland for the period which it is claimed, nor do I believe that he ever lived for a period of eleven months at 40 Maurice Avenue, Stirling again, for the reasons which I have indicated. In my opinion it is much more likely that the deceased kept the property in Stirling as an investment with a view to maximising his profit in due course. He seems to have been particularly successful in that area since at the time of his death, despite apparently never having a full time job he had amassed property of considerable value .Any expressions of intent were never translated into an action which showed disavowal of his domicile of origin.
4. The evidence of Jamie Shepherd and Daniel Smith was to the effect that the deceased was living in Scotland and wished to reside here permanently. However for the reasons which I have indicated I did not believe the evidence of Jamie Shepherd and as far as Daniel Smith is concerned I am satisfied that anything the deceased told him was simply an expression of possible intention in the future which was never acted upon. The other evidence adduced by the Pursuer was that of Dennis O'Reilly. He claimed to have seen the deceased every four to five weeks at the religious meetings which they both attended in London. He thought that the deceased lived on a farm in Scotland. However again for the reasons which I have previously indicated I do not accept that the deceased did indeed live on a permanent basis at Bankhead Farm and I do not believe that he ever lived, apart from a few days, at the property at Maurice Avenue, Stirling. Daniel Smith claimed in his evidence that the deceased was living at Maurice Avenue after his eviction but again for the reasons which I have previously indicated I do not accept that.
5. It seems to me clear again from the evidence that the deceased in this case kept all of his important connections in London. He maintained ownership of 31 Medburn Street and he continued with the lease at Panther House up until he died. He wanted to buy his late mother's house and he was registered to vote in the Camden Electoral Register in January, 2005. The Pursuer made no mention of returning to Stirling to the Defender and Adrian King when she spoke to them after the death. She claimed that they would not be interested in where she stayed.. I did not believe that .They would clearly be interested if she was occupying the deceased` house.
6. Taking all of these factors into account I am satisfied that the deceased had never changed his domicile and maintained his domicile of origin which was England.
7. In those circumstances therefore the deceased was not domiciled in Scotland immediately before his death and Paragraph 29 (1) (b) (i) of the Family Law (Scotland) Act 2006 is not satisfied..
Cohabitation
1. In Paragraph 25 of the Family Law (Scotland) Act, 2006 cohabitation is defined as "a man and a woman who are (or were) living together as if they were husband and wife".
Paragraph 25 (2) is in the following terms:
" In determining for the purposes of any of Sections 26 to 29 whether a person is a cohabitant of another person the court shall have regard to - (a) the length of the period during which A and B have been living together or (lived together) (b) the nature of their relationship during that period; and (c) the nature and extent of any financial arrangements subsisting or which subsisted during that period." Although I do not believe that the Pursuer and the deceased ever lived together at 40 Maurice Avenue, Stirling it is clear that they had been in a relationship for a substantial number of years. Dorje Khandro, the deceased's sister and Adrian King, his half brother both knew of the existence of the relationship between the Pursuer and the deceased. It was suggested by the Defender's representative that since the engagement ring had been taken back from the Pursuer the relationship had broken down. I consider that to be a temporary state of affairs which had been resolved by the time of the deceased`s death. However it is clear that the deceased was found dead in the Pursuer's property at Plender Street and I am prepared to accept for this purpose the evidence of Dennis O'Reilly who saw the Pursuer and the deceased together on the Sunday before the deceased's death. It is clear that that the Pursuer had a long relationship with deceased, confirmed by Dennis O`Reilly and other witnesses, and it is also clear that the deceased was prepared to attend the Pursuer's Immigration Hearing on 7th September, 2004. At that time the deceased told the Adjudicator that he had moved into the Pursuer's flat in Pender Street and that they had lived together for a year and a few months. He claimed that he loved the Pursuer very much. According to the Determination at Paragraph 25 the deceased indicated that he would if possible accompany the Appellant to Russia if she had to return. He did not want them to separate.
2. Taking all of those factors into account I am satisfied that there is evidence of cohabitation in terms of Paragraph 25 of the Family Law (Scotland) Act 2006. However that does not avail the Pursuer since her case fails on the question of habitual residence and domicile.