The phenomenon of divorce tourism is not ideal. It puts unwanted pressure on the courts here to adjudicate on lengthy jurisdiction battles in cases where there is often only a slight connection to the UK. But establishing that the courts in England and Wales have the power to decide financial matters can make a huge difference to a final settlement. So in many high net worth divorces the battle over jurisdiction is one that is worthwhile for one of the parties. And these cases can be bitterly fought.
At Brookman Solicitors in London we regularly advise clients on the best place to divorce in their circumstances. For many years, the courts in England and Wales have been favoured by financially weaker spouses for a number of reasons, including:
- Judges here have greater flexibility and discretion than in other countries
- Equal weight is given to a spouse who goes out to work and one who stays at home
- Maintenance awards are often more substantial for a spouse who does not work
ESTABLISHING RESIDENCE IN ENGLAND AND WALES
Jurisdiction in divorce cases centres on residence. A recent High Court decision – Pierburg v Pierburg – has left many legal commentators wondering whether the test for establishing residence and habitual residence has become more onerous. This could make it more difficult for some individuals to have their divorce heard in London and reduce the incentive to embark on divorce tourism or forum shopping in the first place.
If couples meet the jurisdictional requirements under EU law they are essentially free to start divorce proceedings here.
PIERBURG v PIERBURG
The Pierburgs are seeking a divorce following thirty years of marriage. They are both German nationals. Before their marriage they signed an agreement whereby in the event of divorce Mrs Pierburg agreed not to make any claims on her husband’s assets or make any claim for maintenance.
Mrs Pierburg wanted to divorce in England. For her the stakes could not have been higher: If the English courts refused jurisdiction and her divorce was heard in Germany, the pre nuptial agreement mentioned above may well be upheld –leaving her with nothing. Contrast that with a potential ruling on financial relief by an English court that has the power to award her a substantial portion of family assets irrespective of the prenup.
THE PIERBURGS AND RESIDENCE
Since the 2000s the couple had lived in Switzerland. However they also had a house in London. Following the breakdown of the marriage in mid 2017 Mrs Pierburg moved into the London property. When in January 2018 she issued divorce proceedings in London she did so arguing that she had been resident in England for 6 months and was domiciled here. If she could prove this the English courts would assume jurisdiction and hear her application for divorce.
Shortly after the English petition was lodged Mr Pierburg issued his own petition in Germany seeking the divorce there. He claimed his wife was “German to the core” and had never indicated a wish to live in London. Those proceedings were put on hold until the English courts decided the issue of jurisdiction.
Mr Justice Moor ultimately agreed with Mr Pierburg. He found that while Mrs Pierburg had resided in London since 2017 there were no other links to the UK before this. She had not been habitually resident in London. He agreed she visited London regularly but said “she did not reside here as she basically confirmed in her oral evidence when she said she ‘visited’ regularly.”
Despite her evidence she had significant emotional and physical ties to Germany and in the judge’s opinion was not domiciled in England when she initiated divorce proceedings.
It will now be up to the German court to decide the terms of the Pierburg divorce.
ANALYSIS OF THE RESIDENCE REQUIREMENT
Before Pierburg there was some doubt among family lawyers as to whether it was necessary to be habitually resident for the entire time stipulated in the regulations before presenting a divorce petition (6 or 12 months) or whether one needs only to be habitually resident at the time of presenting a petition.
Judge Moor is clear that habitual residence is required for the entre time set out in the rules, not just at the date of petition. He also indicated that while it’s possible to be resident in a number of places at the same time (for example working in London during the week and returning to a family home at weekends in another country) it is only ever possible to be habitually resident in one place.