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02 May 2019

The residence debate – divorce for international couples

For obvious reasons divorce laws vary from country to country. In some instances the place where the divorce takes place can make a big difference to the outcome for the financially less well-off person. This can lead to a dispute between the couple as to where the divorce should take place.

Whilst calling London ‘the divorce capital of the world’ may be something of an exaggeration, many applicants feel that it is to their advantage to have their case heard in England. English courts apply English law and not say the law of the parties’ nationalities. Pre-acquired and inherited wealth is not automatically excluded from the equation. Moreover, the English court exercises a discretion designed to arrive at a result which is fair. This can result in a redistribution of wealth and/or the payment of maintenance beyond that which would be awarded elsewhere. In the right case the English court will still order long term maintenance and will not automatically uphold the terms of a marital agreement if the result it produces would leave one party in a state of need.

However, a person cannot simply choose to get divorced in England. The English courts do not have the right to deal with a person’s matrimonial affairs simply because that person is a British citizen or is present in this country. The position is governed by legislation which itself incorporates Council Regulation (EC) No. 2201/2003 known as Brussels IIa. This sets out a number of different tests to qualify, four of which make reference to the concept of ‘habitual residence’. It is therefore not surprising that this concept has been the subject of consideration by the court. Very recently this happened in a case involving Gisela and Jurgen Pierburg. They were an international couple of German origin. They had started cohabiting in 1983 and married in Germany in September 1985. The husband was extremely wealthy as a result of his family’s money in the German car industry. The wife had no money of her own. Shortly before the couple married, they signed a marriage contract under German law. The result of that was to leave Gisela with nothing in the event of divorce, even in the event of hardship.

Gisela and Jurgen had one child who was an adult by the time the marriage broke down and proceedings started. In 2000 the couple moved to Switzerland for tax reasons but Gisela continued to maintain links with Germany and visited regularly. Gisela and Jurgen separated in February 2017 and following the breakdown Gisela moved to London where Jurgen owned a property. There was a crucial dispute between them as to whether Gisela moved in July or August 2017 but in January 2018 she issued divorce proceedings in England claiming that she was domiciled and habitually resident in England and Wales and so argued that she ticked two of the boxes. Jurgen disputed the English court’s jurisdiction claiming that Gisela was domiciled in Germany and habitually resident in Switzerland. He issued his own petition for divorce in Germany. It was in Gisela’s interest for the English court to deal with the divorce and associated financial matters. As the judge commented, a divorce in Germany which upheld the marriage contract would result in Gisela not being entitled ‘to any financial remedy including maintenance, notwithstanding a marriage to an exceptionally rich husband for 32 years which produced a son. She has nothing in her own name other than some jewellery’. Give how harsh the marital contract was, it was unlikely to be upheld in an English court if the English court dealt with the divorce.

The judge therefore had to decide whether Gisela was habitually resident in England at the time when she issued her petition and either she had resided in England and Wales for 12 months before that date or she had resided in England and Wales for six months and was domiciled here. It seemed to be accepted that Gisela was habitually resident in England when she issued her petition but was that enough? She argued that, if she was habitually resident at the time of issue, she only needed to be resident for 12 or six months. Jurgen argued that during the required period the residence had to be habitual. Ultimately the judge decided in favour of Jurgen preferring his interpretation of the Regulation. He carefully considered the difference between ‘mere residence’ and ‘habitually residence’ and asked himself three questions. Firstly, when did Gisela become habitually resident in England? Secondly, did she become resident on a different date? Thirdly, was she domiciled in England?

The judge accepted that there had been a conflict between earlier cases on how to apply the test. He confirmed that habitual residence is a person’s permanent or habitual centre of interests. A person can be resident in more than one place, eg because of work commitments, but only habitual resident in one. The judge decided that Gisela became habitually resident in England on 15 August 2017, rather than 12 July 2017. He noted that during that period, whilst she spent 12 nights in the UK, she spent 22 away. He found there was nothing unique about her trip on 12 July 2017 to trigger habitual residence. By way of example she did not bring her important possessions with her on that date. So by the time Gisela issued her petition she had only been habitually resident for about five months – neither six nor 12.

The judge went on to consider when Gisela became resident in England. He determined that she was not resident until 15 August 2017. She had visited the parties’ property in England before that date but he noted that she only spent 33 nights in England between 1 January 2017 and 15 August 2017. He did not consider that this satisfied a residence requirement.

Finally, the judge was not persuaded that Gisela could claim to be domiciled in England. He concluded that she remained domiciled in Germany. He found that throughout the parties’ time in Switzerland and until autumn 2017, she had remained linked to Germany. Not only did her family remain in Germany, but she continued to use her German florist, beautician and doctor.

The judge therefore determined that the English court had no jurisdiction to receive Gisela’s petition on 12 January 2018 and it was dismissed.

Another judge has recently said of Brussels IIa that one of its primary objectives was to prevent parties from engaging in proceedings in more than one jurisdiction but that is likely to continue to happen whilst there is a clear financial benefit to one party in a particular court dealing with matters. This case however hopefully provides useful clarification on what is a tricky area of the law. It also highlights how important the parties’ evidence is. The judge stated:

‘What I am clear about is that the Wife’s links to Germany, both emotional and physical, are considerably greater than she made out in her supporting statement’.

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