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Choosing the Right Divorce Jurisdiction
In international cases where more than one country may have jurisdiction to deal with a divorce, London will be an attractive destination for the financially weaker spouse. London has acquired the label of ‘divorce capital of the world’ because the Family Court in England and Wales has a wide discretion when redistributing family wealth and will make larger financial awards than in many other countries. For this reason, securing jurisdiction for a divorce to be dealt with in England and Wales can be hotly contested.
England and Wales is a signatory to what is colloquially known as Brussels II (to give it its proper title Council Regulation (EC) No 2201/2003) which sets out the basis on which England and Wales and the majority of European countries have jurisdiction to entertain a divorce:
“In matters relating to divorce, legal separation or marriage annulment, jurisdiction 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 is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.”
In cases where two European counties are signatories to Brussels II, the law is ‘first come, first served’ so who issues first is determinative. In cases where there is a competing divorce jurisdiction, for example, between England and Wales and a non-Brussels II country, the approach should be which country is the most convenient forum. However, the approach of the English Judges now often leans towards the ‘first come, first served’ basis.
However, while there may be two competing jurisdictions, there may be a potential argument that one of the countries does not have jurisdiction at all.
Pierburg v Pierburg
That issue came before High Court in Pierburg v Pierburg where Clarissa Pierburg issued a divorce petition in England claiming that she was habitually resident here on the ground that either she had resided in England and Wales for 12 months before her petition was issued or she had resided in England and Wales for 6 months and she was domiciled here. Jurgen Pierburg then issued his divorce petition in Germany and issued an application to the English Court to dismiss his wife’s Petition.
In the early years of the marriage the family had lived in Germany. In 1999/2000 they left Germany and moved to Switzerland for tax reasons. In 2002 Jurgen Pierburg purchased a property in Belgravia around the time that their son began his education in England, but the family remained living in Switzerland. The marriage got into difficulties and the parties separated in February 2017. Later that year Clarissa Pierburg moved into the Belgravia property.
The Judge in Pierburg had to address Brussels II and the differing approaches to its interpretation decided in two 2007 High Court cases, Marinos and Munro. There are fine distinctions between the approaches. The Marinosapproach requires someone to be habitually resident in England at the date of the Petition and resident (not necessarily habitually resident) for the 6/12-month period. The Munro approach requires a party to be habitually resident (not just resident) in England and Wales throughout the 6/12-month period.
The Judge in Pierburg came down on the husband’s side, preferring the Munro approach. This required Clarissa Pierburg not only to show physical residence in London, but also habitual residence for the 12 months preceding her divorce petition, or 6 months of habitual residence and domicile. She was not able to establish either and her divorce petition was dismissed, meaning that Jurgen Pierburg could proceed with the German divorce.
A warning …
Pierburg was not really about the divorce, but about securing jurisdiction as to where the financial claims on divorce would be heard. Before the marriage, the Pierburgs had entered into a marriage contract in Germany under a regime of separation of property and waiving any claim for maintenance. This potentially will give Clarissa Pierburg no financial entitlement. The marriage contract is likely to be upheld in Germany, but if jurisdiction had been founded in England then it is likely that little, if any, weight would have been attached to it by an English Court on the basis it would produce an outcome that an English judge would consider to be manifestly unfair.
At the end of his judgement the Judge gave a warning that he hoped it would be possible to reach a sensible and fair compromise of the financial claims, but if there was not, there may come a time when the Clarissa Pierburg would want to apply to the Court in England pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 for financial relief following an overseas divorce. He reserved any future application to himself.
Divorce jurisdiction battles are not something that should be undertaken lightly. They are expensive and it is not always a case of ‘winner takes all’ because even if the financial claims aren’t dealt with in England, they still can come back to England with the loser getting a second bite at the cherry.
In situations like Pierburg where the outcome may be uncertain, before embarking on the expense of a contested hearing, it may be wise to see if a compromise is possible somewhere between the financial outcomes in the competing countries.
While speed can be of the essence when forum shopping, make sure that you have strong jurisdictional grounds. Take proper advice because the consequences if you do not can be very expensive.
Philip is a specialist family lawyer. He has significant experience in claims for financial provision on divorce, pre and post-nuptial agreements, civil partnership dissolution, and cohabitation agreements and disputes. He has expertise in dealing with children cases, including residence and contact disputes.
Many of his cases have an international dimension and he is a member of the International Academy of Family Lawyers.
Philip has been involved in a number of leading family law cases during his career and has been recognised in legal directories including Chambers and Legal 500 where he has been described as “a great pragmatist” and “sagacious”. He is named as a prominent figure for family and matrimonial work in the Citywealth Leaders List.