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Divorce and Brexit: the race to court and the residence debate

Despite the uncertainties of Brexit, our family judges continue to determine disputes between married couples about where in Europe their divorce should be heard. London is still thought of as the Divorce capital of the world because of the English court’s generous awards of maintenance and capital (particularly when compared to other European countries) and its discretionary/fair approach. As a result, we are still seeing wives (generally) keen to start their divorce proceedings in the courts of England and Wales, rather than another European country. The stakes can be high as financial awards differ greatly as between England on the one hand and France or Germany on the other. We regularly see one party issuing in one European court without notice to their spouse, to avoid jurisdiction being seized in another country – referred to as the Eurostar divorce or the race to court.

This week has seen an important decision in the English family court as the German couple Gisela and Jurgen Pierburg took their jurisdiction dispute before Mr Justice Moor (Pierburg v Pierburg [2019] EWFC 24).  The current European regulation which determines which country in Europe has jurisdiction says as follows :

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 this case, Gisela Pierburg argued that, on the date she issued her petition in England, she was habitually resident and either :

–  she had resided in England and Wales for 12 months before the petition was issued or

–  she had resided in England and Wales for 6 months and she was domiciled here.

There has been debate in previous reported cases (heard in 2007) as to whether “residence” in the European regulation means simply living somewhere (with an acknowledgment that someone can be resident in two countries at the same) or whether it requires “habitual residence”. Habitual residence is the place where a person has established on a fixed basis his/her permanent centre of interests. The judge in Pierburg determined that the higher bar of habitual residence is what is required  to establish divorce jurisdiction.

After hearing oral evidence from both parties, the judge determined that Gisela Pierburg did not have the requisite length of habitual residence nor did she establish a domicile of choice here. Her English petition was therefore dismissed. The effect of this is to allow the husband to pursue his divorce petition in Germany, where he will rely on a marriage contract entered into pre marriage which says that the wife is not entitled to any financial remedy.

My view is that this case gives a stark warning to divorce forum shoppers; the English courts are not going to bend the rules to hear divorce applications from European couples who have not been habitually resident here for the requisite period. The bar to establish jurisdiction has been set higher. However, not all is lost for Mrs Pierburg in this case. If the outcome in Germany is such that Mrs Pierburg receives no/ limited financial provision, “notwithstanding a marriage to an exceptionally rich husband for 32 years which produced a son” then the English court may intervene to give the wife an award under the provisions of Part III of the Matrimonial and Family proceedings Act 1984 (financial relief following overseas divorce).

With Brexit looming, we may well end up in the unhappy situation where the divorce jurisdiction rules in England and Wales are different to those of European countries. If that is the result, we will inevitably see more divorce forum disputes, with the discretionary and fact specific “closest connection” test being applied.

For more information on establishing jurisdiction for divorce in England or advice on European or Anglo-French family law issues, contact Claire Wood or one of the team.

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