- May 17, 2019
- By Kim Beatson
- 0 comments
Jurisdictions and divorce petitions
A casual connection or even a “love affair” with another country will generally not be enough to acquire jurisdiction in relation to divorce.
Where EU Member States are concerned, jurisdiction lies with the courts of the Member State:-
a) in whose territory: –
• the spouses are habitually resident; or
• the spouses were last habitually resident, in so far 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 are 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.
Several cases have been published where there is a factual dispute as to jurisdiction, particularly where habitual residence is relied upon.
The latest case involves Mr and Mrs Pierburg and was heard by Mr Justice Moor in April 2019 (2019 EWFC24).
Mr Pierburg was born in Germany but lived in Switzerland. Mrs Pierburg was also born in Germany which is where the parties met and married. They lived in Dusseldorf for much of the marriage and later moving to Switzerland for tax reasons.
When the marriage broke down, Mrs Pierburg claims to have moved to England to live in their London property on 12 July 2017. Mr Pierburg claimed the date was 15 August 2017. It seems a minor difference but it was very important in the context of this case as there was some social interaction between the parties during the latter part of 2017.
Mrs Pierburg issued her divorce petition in London in January 2018 claiming to be domiciled and habitually resident there for at least six months immediately prior to the presentation of the petition. It was based on Mr Pierburg’s unreasonable behaviour.
In February 2018 Mr Pierburg issued his German divorce petition in the Berlin court, claiming that both spouses were German citizens and had lived apart for more than one year.
The English proceedings came first in time. Accordingly, the German proceedings were suspended until jurisdiction in England was clarified in accordance with EC regulations.
Mr Justice Moor made it clear that the burden of proof on establishing that the English court had jurisdiction rested with Mrs Pierburg. There was a factual dispute about habitual residence and the issues before the judge were as follows:-
(a) When did Mrs Pierburg become habitually resident in England and Wales?
(b) Did she become resident here on a different date?
(c) Is she domiciled in England and Wales?
After a hearing costing hundreds of thousands of pounds, the judge found for Mr Pierburg.
He was clear that Mrs Pierburg had not established habitual residence on 12 July 2017 when she stayed for six nights and then returned to Switzerland. He contrasted this with the position on 15 August 2017 when she stayed in England for all but 16 nights until the end of that year. The judge found that she became habitually resident in this country on 15 August 2017 but that did not give her the requisite six months of habitual residence which the EU regulations require.
On the question of domicile, the judge found this to be a difficult aspect of the case. She was a German national, but she left Switzerland as soon as her marriage broke down and the judge found that she was not domiciled there. In fact, she was only there because she loved her husband and he lived there for tax reasons.
The judge acknowledged that the wife had a “love affair” with London but she did not satisfy him that she had changed her domicile and certainly not by 12 January 2018. For those reasons the wife did not establish jurisdiction and her petition was dismissed allowing the husband to continue the divorce in Germany.
Why was jurisdiction so important?
The London courts deal with many divorces involving the wealthy who have moved to this country to divorce in the expectation that they will receive superior financial settlements. In this case Mr and Mrs Pierburg had entered into a marriage contract which gave Mrs Pierburg no financial entitlement following the breakdown of her marriage. This included maintenance and was despite the fact that Mr Pierburg (her husband of 32 years) was exceptionally wealthy.
This case and several others emphasise the importance of instructing specialist lawyers who understand the implications of securing jurisdiction and the effect on financial remedies.
For further information on this subject please contact: –
Kim Beatson, Partner
Anthony Gold Solicitors
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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