Where to split your marital pot

International couples often contemplate initiating divorce proceedings in different jurisdictions to obtain the best possible settlement. Lawyers call this ‘forum shopping’. England has a reputation for being the most generous jurisdiction to the weaker financial party and London is still by far the “divorce capital of the world”. As a result of this, our family judges continue to decide disputes between international couples about where in Europe their divorce should be heard, irrespective of Brexit.

The recent case of Pierburg v Pierburg (2019) concerned a dispute about whether a divorce should proceed in England or Germany. The issue before the court was whether the English court had jurisdiction to deal with the wife’s English divorce petition. The court was obliged to follow the current European regulation that determines which country in Europe has jurisdiction:

Pursuant to Article 3 of Council Regulation (EC) No 2201/2003, jurisdiction in relation to divorce shall lie with the courts of the Member State:-

(a) In whose territory:-

  • the spouses are habitually resident; or
    • the spouses were last habitually resident, insofar as one of them still resides there; or
    • the respondent is habitually resident; or
    • in the event of a joint application, either of the spouses is habitually resident; or
    • the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made; or
    • the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and….in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b) in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

In our case, the parties married in Germany in 1985, lived there until around 2000 and then moved to Switzerland for tax reasons. The wife stated that she moved to London by 12 July 2017, six months prior to issuing her divorce petition and consequently filed for divorce in the English court on 12 January 2018. In February 2018, the husband issued a competing petition in Germany and contested the proceedings in England.

According to the husband, the English court did not have jurisdiction to deal with the divorce as the wife had only moved to London on 15 August 2017 and therefore had not been ‘habitually resident’ in England for the necessary period as required by the regulation. The stakes in this case were high, as the parties had entered into a German marriage contract, by which they opted for a separation of property regime having the wife waiving any claims for maintenance, even in the event of hardship. The outcome of upholding the agreement would lead to the wife leaving the marriage with nothing.

The wife argued that she was habitually resident and either she had resided in England and Wales for:

  • 12 months before the petition was issued; or,
  • 6 months and she was domiciled here.

The Pierburg judgment makes it clear that there is a difference between ‘residence’ and ‘habitual residence’, explaining that we can have two residences but only one habitual residence. ‘Habitual residence’ is defined as the place where the person is established on a fixed basis and is his or her permanent or habitual centre of interests.

Unfortunately, for the wife in Pierburg, the court decided that she did not have the required length of habitual residence neither did she establish a domicile of choice in England and Wales. Dismissing the case allows the husband to pursue his divorce petition in Germany, where he can enforce the marriage contract denying the wife any financial remedy.

Not all is lost – Mrs Pierburg can, if she receives no provision in Germany, ask the English court for an award under the provisions of Part III of the Matrimonial and Family proceedings Act 1984. 

For more information on establishing jurisdiction for divorce in England get in touch with us today on 0203 146 3549 / e:mail: info@lflegal.co.uk.

Disclaimer

All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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