Helen Ward and Sarah Havers acted for the husband in the recent case of Pierburg v Pierburg [2019] EWFC 24 in his successful challenge to the jurisdiction of the English court to entertain the divorce petition issued in London by his wife, a German citizen living in Switzerland. It was a clear case, as characterised by the media at the time, of “divorce tourism”, more commonly known to divorce practitioners as “forum shopping”.
As with all divorce jurisdiction disputes, the contest is about money. The party asserting the jurisdiction of the English court is invariably the financially weaker party looking to have not just their divorce but also their financial claims decided by the famously generous English court. Conversely, the party challenging jurisdiction is looking to protect their wealth and avoid paying their former spouse more under an order made by the English court than in the alternative jurisdiction, in this case, Germany.
Regardless of the motivation, the party who has issued the divorce petition and is claiming jurisdiction has to satisfy certain criteria (as set out in pan-EU legislation, specifically Article 3 of Counsel Regulation No 2201/2003). In this case, the wife had to show that she was either:
- habitually resident on the date she issued her petition, which she did on 12 January 2018, and had been resident in England for the 12-month period immediately preceding that date (ie from 12 January 2017 to 12 January 2018); or
- habitually resident on the date she issued her petition and had been resident in England for the six- month period immediately preceding that (ie from 12 July 2017) and had her domicile in England.
We will look at each of the concepts of domicile, habitual residence and residence in turn in the context of the facts of this case.
Background to the parties
The husband and wife, Jürgen and Clarissa Pierburg, were both born in Germany in the 1940s, although the wife, until 1958, was raised in what was then East Germany. The husband was born into a wealthy family who made its money in the German car industry.
The parties met in Dusseldorf, Germany in 1981, began living together in 1983 and married in 1985 having signed a pre-nuptial agreement. Their son was born in 1987 and they remained living in Germany until 2000 when, on tax advice, they moved to Switzerland.
Following their move to Switzerland, the husband bought a short lease on a property in central London and their son was educated at boarding school in England, where he then attended university.
The marriage ran into serious difficulties in late 2016 and the parties separated in February 2017. The wife’s case was that she decided she had no future in Switzerland and no wish to return to live in Germany, so she moved to England to live in the London property. The wife claimed that she moved permanently to England on 12 July 2017. The husband contended she did not move until 15 August 2017.
Whilst the difference of approximately one month may seem unimportant, it was, in fact, central to the case.
The husband’s position was that he had “forced the wife’s hand” to issue a month too early by informing her that if she did not return to the family home in Switzerland he would have no option but to issue a petition in Germany on Monday 15 January 2018. To avoid him issuing first, the wife issued a divorce petition in England on Friday 12 January 2018. She claimed she had been living in England for six months by then but the husband claimed it had only been five months.
The husband was not aware of the wife’s English petition until he was served in March 2018. In the meantime, he had issued his petition in Germany in February 2018 (a year after the parties had separated). However, as he was second in time, his German petition was stayed pending the decision of the English court as to whether it had jurisdiction.
Mr Justice Moor sitting in the Family Court heard the case over the course of four days with oral evidence from the husband and wife.
Domicile
Domicile is a uniquely British concept (and a complex one) but in brief, everyone has a domicile of origin at birth (usually inherited from their father). No one is ever without a domicile (whether of origin or choice) and it is not possible to have more than one domicile at any one time.
It is possible to sever a domicile of origin and adopt a domicile of choice but one must be simultaneously resident in that country and have an intention of permanent or indefinite residence. In establishing a change in domicile “actions speak louder than words”. A party’s statements to that effect must be treated with caution unless corroborated by actions consistent with that declaration.
It was the wife’s case that upon their move in 2000 she severed her German domicile of origin and adopted a Swiss domicile of choice. When she then moved to London, she claimed to have adopted an English domicile of choice. The husband argued that she remained domiciled in Germany throughout their time in Switzerland and following her move to England.
Habitual residence vs residence
Like domicile, it is only possible to have one habitual residence. Habitual residence is defined as the place where the person has established, on a fixed basis, his or her centre of permanent or habitual centre of interests. Mr Justice Moor held that “the test is qualitative not quantative. In other words, it is not simply a head-count of days and nights, although time spent in a particular location will be a relevant factor in most cases”.
Residence is different from habitual residence. A person can be resident in two countries at the same time. However, Mr Justice Moor agreed with counsel for the husband, Lewis Marks QC, that “residence has to be more than just a place where you or your spouse own a property. It has to be somewhere where you reside as opposed to where you visit.” The judge referred specifically to the super-rich who own numerous homes around the world. “They visit these homes. They do not reside in each and every one of them,” he said.
The Marinos vs Munro debate
Following the conflicting commentary given over a decade ago by judges in the cases of Marinos [2007] EWHC 2047 (Fam) and Munro [2008] 1FLR, the view of Mr Justice Munby (who went onto become the President of the Family Division) in Marinos has largely prevailed. His view was that the spouse seeking to establish English jurisdiction needed only to have been resident rather than habitually resident for the six or twelve month period prior to issuing their petition. This approach has, since then, arguably contributed to the ease with which forum shopping spouses (or divorce tourists) have been able to establish jurisdiction in England.
Counsel for the husband (for this aspect of the case, Stewart Leech QC) set out in detail how the Marinos interpretation of the EU legislation was in conflict with the rest of the EU member states. He did this by analysing the translation of the legislation and guidance across various European languages. In so doing, he showed that what is required under the legislation is the higher threshold of habitual residence for the entire relevant period (as Mr Justice Bennett had commented in Munro) rather than mere residence.
Mr Justice Moor agreed with Mr Leech QC’s analysis.
The decision
Habitual residence
Mr Justice Moor accepted that the wife was habitually resident in England by 12 January 2018 (the date on which she issued her petition), as he found that her centre of interests was by then in London. However, he could not find on the evidence that she had been habitually resident in England on either 12 January 2017 or 12 July 2017. Instead, the judge found that the wife became habitually resident in England on 15 August 2017, five months before she issued her petition.
The judge was careful not to base his decision as to the wife’s habitual residence solely on a night count of where she had spent her time. He agreed, however, with the husband’s case that the pattern of time she spent in England changed dramatically from 15 August 2017 onwards.
Residence
On the facts of the case, the judge also felt able to decide that the wife had not even been resident in England prior to 15 August 2017.
Despite the parties having owned a property in London since 2002 and it being accepted that it is possible to have more than one residence, Mr Justice Moor found on the evidence that the wife had merely been a visitor to England when she came to London to go to the ballet or the opera and to see friends.
Domicile
Mr Justice Moor found the question of whether the wife had adopted an English domicile of choice by 12 January 2018 more difficult. However, the judge had no difficulty in rejecting entirely the wife’s contention that she established a domicile of choice in Switzerland when the parties moved there in 2000. He found that the wife maintained her connections with Germany, returning at least monthly to see her friends there as well as her family, including her mother. The wife continued to see her doctors in Dusseldorf, as well as her hairdresser and beautician, and she continued to vote in German elections.
Whilst the judge accepted that the wife had told him that she loves England, she has come here permanently and she intends to live here indefinitely, he referred to the “importance of trivial acts which may be of more weight to determining domicile”. Mr Justice Moor considered that many of the wife’s connections with Germany during her time in Switzerland had continued during her time in England and the changes she had made (such as registering with new doctors and dentists) were in part motivated by her need to establish jurisdiction here. The judge also considered the wife’s active interest and involvement in German politics could be seen as inconsistent with her case that she had established an English domicile of choice.
Mr Justice Moor found, on both the date of his judgment and the date she issued her petition, the wife remained domiciled in Germany. His view was that “time will tell” whether the wife becomes domiciled in England in due course.
In summary, the wife was not able to establish that she was habitually resident, or even resident, for the requisite period or that she had adopted an English domicile of choice.
A change in the law?
Helen Ward, the partner with conduct of this case, comments:
“Mr Justice Moor did not, in the end, have to rely on his finding that it was habitual residence rather than mere residence for the six- or twelve-month period that was required, as he could find that the wife had not even been resident in England.
“However, his wholehearted endorsement of Mr Leech QC’s argument results effectively in a change in the law, which practitioners and those seeking to establish the jurisdiction of the English court must bear in mind.
“It is no longer sufficient for a wealthy international spouse with a property in London to issue a divorce petition here and assert they have been resident for six or twelve months. They must show that they have been habitually resident with their centre of interests in England throughout the relevant period.
“It is inevitable that this decision, which provides long overdue clarification of the law, will limit forum shopping or ‘divorce tourism’ in this jurisdiction.”
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