Posted: 29/04/2019
The well-publicised case Pierburg v Pierburg, [2019] EWFC 24 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 parties married in Germany in 1985 and lived there until around 2000 when they moved to Switzerland for tax reasons. The wife argued that she had moved to live permanently in London by 12 July 2017, six months prior to issuing her divorce application (the date of the move was hotly contested) and subsequently issued a petition for divorce in the English court on 12 January 2018. In February 2018, the husband issued a competing petition in Germany.
The husband argued that the English court did not have jurisdiction to deal with the divorce as the wife had not been habitually resident in England for the required time period prior to issuing her petition and did not satisfy any of the other criteria.
Mr Justice Moor considered arguments on the conflicting authorities on this issue in Marinos v Marinos [2007] EWHC 2047 Fam and Munro v Munro [2007] EWHC 3315 Fam.
England has a reputation for being the most generous jurisdiction in the world for the weaker financial party to a divorce.
In terms of spousal support, England places no limit on the term for which payments can be made and they can be up to lifelong in duration. By contrast, Germany places an emphasis on financial autonomy following a divorce. Maintenance is only awarded until financial independence is achieved. In addition, the English courts retain a discretion to depart from the terms of a marital agreement where they are perceived to be “manifestly unfair” in the circumstances of the breakdown.
For more information on the contrasting approaches of different jurisdictions, take a look at Penningtons Manches’ International Spousal Maintenance Barometer.
The English court is less likely to hold the financially weaker party strictly to the terms of a pre-marital agreement. The parties in this case had entered into a German marriage contract which opted for a separation of property regime and under which the wife waived any claims for maintenance, even in the event of hardship. The separation of property terms meant that she would leave the marriage with nothing but some jewellery as she had no other assets in her name.
The above factors pointed to a significant financial advantage in the wife’s divorce and associated claims for financial relief proceeding in England instead of Germany. This can often be the case with international families.
In this case, the English court had to consider whether to accept jurisdiction under Article 3 of Council Regulation (EC) no 2201/2003. This states that jurisdiction lies with the EU Member State (in this case England & Wales) in whose territory:
The decision required an examination of two competing schools of thought which had developed through previous case law. The wife advanced a case on the basis of a decision in the case of Marinos, in which jurisdiction was held to be established provided the applicant was “habitually resident” at the date of the petition and had been “resident” for either the 12 month period or the six month period if domiciled in England as referred to above.
The husband relied on a conflicting decision in the case of Munro v Munro [2007] EWHC 3315 Fam where it was concluded that, in order to establish habitual residence, a party had to be “habitually resident”, and not merely “resident” in the jurisdiction for the six or 12 months required, not just habitually resident at the date of the petition and merely resident for the rest of the time.
The Pierburg judgment makes it clear that there is a difference between “residence” and “habitual residence”. Moor J gave the practical example that you can have two residences but only one habitual residence. For example, the wife in Marinos had a house in Greece where her husband and children lived and another house in England where she worked. “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.
After detailed exploration, including comparing different translations of the Regulation, Moor J preferred the Munro interpretation. This required the wife to show not simply residence but habitual residence for a period of 12 months preceding her petition, or six months of habitual residence and domicile, neither of which she was able to establish. Accordingly, her petition in England was dismissed in favour of the German proceedings.
While the decision in Pierburg strengthens the Munro interpretation of Article 3, it does not overrule or supersede the Marinos decision but sits alongside both the decisions in Munro and Marinos. Clarity will only come when this issue is dealt with by a higher court. The judgment suggests that, in this case, this issue is unlikely to be resolved as in Moor J’s view the wife was neither resident nor habitually resident for sufficient time and his preference for the Munro interpretation of the law is not decisive.
From the wife’s perspective, she may take heart from the fact that, should the German court uphold the marital agreement and make a financial order based on its restrictive terms, there may yet be scope for her to seek redress in the English court under Part III of the Matrimonial and Family Proceedings Act (MFPA) 1984. Moor J gives fair warning about this in the concluding paragraph of his judgment, going so far as to reserve any application to himself.
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