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The issue was whether the English courts had jurisdiction under Article 3, Council Regulation (EC) 2201/2003 (Brussels IIa) for a Wife to apply for a divorce in England. The couple were German and had lived in Switzerland for much of the marriage, but at the time of divorce the Wife was living in England. The Husband claimed the English courts did not have jurisdiction and the Wife was therefore bound by a German pre-nuptial agreement – leaving her with nothing. The Judge, Mr Justice Moor, had to determine two issues: first, if the correct interpretation of the Regulation required the Wife to have been habitually resident or merely resident for the 6 or 12 month period before the petition; second, whether the Wife met the conditions for habitual residence, residence, and domicile under the Regulation. The Judge decided that the Regulation required habitual residence for the entire period. He then went on to conclude that, in any event, on either interpretation of the Regulation the Wife did not meet the test. Therefore, he held there was no jurisdiction for the Wife to apply for a divorce in England and dismissed her petition.

Background

The Husband and Wife begun cohabiting in 1983 and then married in Germany in September 1985. The Husband was extremely wealthy as a result of his family’s money in the German car industry [2]. The Wife had no money of her own. Shortly before they married, they signed a marriage contract under German law. The contract left the Wife with nothing in the event of divorce, even in the event of hardship [4]. The parties went on to have one child, who was grown-up by the time proceedings began. Although the parties started their married life in Germany, in 2000 they moved to Switzerland for tax reasons. Despite this move, the Wife maintained links with Germany and returned there regularly.

They separated in February 2017. Following the breakdown of the marriage, in the Summer of 2017 the Wife moved to London (where the Husband owned a property). The Wife claimed she moved on 12 July 2017, the Husband said 15 August 2017. Although she did fly to London on 12 July 2017, she then went back and forth between London and Switzerland until 15 August 2017, at which point she remained in London.

The Wife issued divorce proceedings in London on 12 January 2018, claiming she was domiciled and habitually resident in England and Wales and therefore the court had jurisdiction [11]. The Husband’s response was that she was domiciled in Germany, and habitually resident in Switzerland and the English courts did not have jurisdiction [13].

The relevant law is Article 3, Council Regulation (EC) 2201/2003 (Brussels IIa). This Regulation sets out six situations when a Member State has jurisdiction for a divorce [28]. The Wife’s position was that two of these grounds gave her jurisdiction in England: first, indent 5 of Article 3 the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made”; second, indent 6 of Article 3 “the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and....in the case of the United Kingdom and Ireland, has his or her “domicile” there” [29].

Therefore, the issue was whether the Wife met the requirements under indent 5 or 6 at the time of her petition for divorce, 12 January 2018.

Residence/habitual residence

First, the Judge had to determine whether indents 5 and 6 of Article 3 of the Regulation, “the applicant is habitually resident if he or she resided there [for six months/a year]…”, require: a) habitual residence at the date of petition and mere residence during the 6 or 12 month period before the date; or b) habitual residence for the entire 6 or 12 month period before the date.  The Judge stated that there was a conflict of authorities and noted that although the previous decisions were not binding upon him they were persuasive [48]. He labelled it “The Marinos/Munro debate”.

The Judge confirmed that habitual residence is a person’s “permanent or habitual centre of interests” [43]. He also accepted although a person can be habitually resident in only one place, he or she can be resident in more than one place - for example if someone works and lives in London in the week, and returns to his/her family home at the weekend [46]. He also noted that residence requires more than merely owning and visiting a property [47].

The Wife’s position, supported by Marinos v Marinos [2007] EWHC 2047 (Fam), was: although habitual residence is required at the time of petition (12 January 2018), it is not required for the 6 or 12 months preceding the date of petition. Instead, the relevant requirement was mere residence [32]. In Marinos Mr Justice Munby noted that the Regulation does not say “habitually resident” twice, but instead distinguishes between “resident” and “habitually resident” [49]. The Wife stated that she was habitually resident on 12 January 2018, the date of her divorce petition, and was resident for either 6 (indent 6) or 12 months (indent 5) before this date. Therefore, there was jurisdiction.

The Husband’s position, in line with Munro v Munro [2007] EWHC 3315, was that the Regulation required habitual residence for the entire period preceding the date of the petition not just at the date of the petition. Therefore, in order to meet the test, the Wife would need to have been habitually resident from either 12 January 2017 (indent 5) or 12 July 2017 (indent 6) – which she was not [33]. Mr Justice Bennett in Munro relied on the importance given to habitual residence in the explanatory report which accompanied the regulation, The Borras Report [51].

The Judge concluded that he preferred the Munro argument: habitual residence was necessary for the entire 6 or 12 month period [62]. He stated that this was in line with his own provisional interpretation of the Regulation [54]. He was not convinced by a literal interpretation of the Regulation, and concluded that such an interpretation would mean the only requirement to prove habitual residence would be “mere residence” for the 6 or 12 month period [53]. In support of this conclusion he noted the Regulation was EU-wide [55] and that several of the translations of the Regulation in the Borras report (although not all) repeated habitual residence, rather than drawing a residence/habitual residence distinction [56].

Jurisdiction under the Regulation

To re-cap: in order for there to have been jurisdiction for Wife to apply for a divorce, she must have met one of the grounds under indent five or six of the Regulation at the date of the petition (12 January 2018). The Judge went on to make findings both under the Munro and the Marinos interpretations – in case he was wrong in his reading of the residence/habitual residence [63]. He posed three questions [75]. First: when did the Wife become habitually resident in England? Second: did she become resident on a different date? Finally: was she domiciled in England?

The Judge found that the Wife became habitually resident in England on 15 August 2017, rather than 12 July 2017 [79]. He noted that between 12 July and 15 August 2017 she spent 12 nights in the UK, but 22 away [78]. He found there was nothing unique about her trip on 12 July 2017 to trigger habitual residence – for example, she did not bring all of her important possessions with her on that date [71]. Instead, it was from 15 August 2017 that the change occurred. Therefore, because 15 August 2017 was less than 5 months before 12 January 2018, under the Munro interpretation, she did not meet the test under indent 5 or 6.

He then went on to consider the Marinos interpretation, which would have required mere residence in the 6 or 12 month period before the date of the petition. He found she was not resident in England until 15 August 2017 [81]. Crucially, the Judge found, citing her oral evidence, that she “visited” the parties’ property in England before 15 August – despite her love of England and connections with charities. He noted that she only spent 33 nights in England between 1 January 2017 and 15 August 2017 [80]. Therefore, even under the Marinos interpretation, she did not satisfy the residence requirement under indent 5 or 6 and there was not jurisdiction at the time of the petition.

Although the Wife did not meet the test for residence or habitual residence under either interpretation of the Regulation, the Judge went on to consider whether she was domiciled in England on 12 January 2018 (relevant to indent 6). He concluded that she remained domiciled in Germany [87]. 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 doctors [85]. Consequently, the Wife failed to meet the test for domicile.                                                                    

In conclusion, there was no Jurisdiction for the Wife’s application for divorce in England on 12 January 2018 and the Judge dismissed her petition [88].  

Related articles:

Pierburg and habitual residence: certainty at last?

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