Pierburg and habitual residence: certainty at last?

Last week, judgment was handed down in the High Court in the case of Pierburg v Pierburg [2019] EWFC 24. It is hoped that Moor J’s decision will bring clarity to the topic of so-called ‘divorce tourism’, which had been left in a state of uncertainty for the past decade, by offering definitive guidance on how to determine whether the English court has jurisdiction to deal with a divorce.

Mr and Mrs Pierburg were an extremely wealthy couple of German origin. They married in Germany in 1985, and made their home there until they moved to Switzerland in 1999/2000 for tax purposes. After the marriage broke down, the wife moved to London in the summer of 2017 – the exact date was in dispute, and highly relevant to the proceedings – and petitioned for divorce in London in January 2018. The husband petitioned in Germany the following month, and claimed that the English court did not have jurisdiction to hear the matter because the wife had not been habitually resident in England for the required time.

The issue of jurisdiction was more than mere semantics, and was clearly of the greatest significance to this couple: they had entered into a marriage contract in Germany shortly before their nuptials, which provided that the wife had no claims on the husband’s assets, and waived any claims for maintenance, even in the case of hardship. As Moor J commented, a divorce in Germany which upheld the marriage contract would result in the wife 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.’ Given that an English court would be extremely unlikely to regard such an agreement as fair and therefore unlikely to uphold it, it was in the wife’s interests to pursue a divorce in England. A jurisdictional stand-off between husband and wife ensued.

Where parties are able to commence divorce proceedings in more than one EU jurisdiction, Article 3 of Council Regulations (EC) no 2201/2003 applies. In Pierburg, the court was concerned with Article 3 (a) indents 5 and 6, which state that ‘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….in the case of the United Kingdom and Ireland, has his or her “domicile” there.’ Legal teams for the husband and wife relied on conflicting authorities to offer different interpretations of what must be established to satisfy those indents, and therefore establish that a party is habitually resident. Moor J referred to these competing interpretations as the ‘Marinos v Munro debate’, after the two decisions – both of which were heard in the High Court in 2007 – which offered rather different constructions of the law.

In Marinos v Marinos [2007] EWHC 2047 (Fam), Munby J, as he was then, held that in order to establish jurisdiction, the applicant must be habitually resident at the date of the petition and have been resident in the jurisdiction for either twelve months, or six months if they were also domiciled in England. Munby J’s judgment was therefore a very literal interpretation of the wording of the regulations, and made it relatively easy for applicants to establish jurisdiction, given that ‘residence’ is wider than ‘habitual residence’, and it is possible to be resident in more than one country at the same time. This interpretation of the regulation was also supported by Peter Jackson J as he was then in V v V [2011] EWHC 1190 (Fam).

In Munro v Munro [2007] EWHC 3315 (Fam) however, Bennett J held that in order to establish habitual residence, a party had to be habitually resident, and not merely resident, in the jurisdiction for the stipulated period of time. In reaching this decision, Bennett J relied on the dominant role given to habitual residence in Article 3.

Moor J found in favour of the husband, who had sought to argue that the decision in Munro was to be preferred. Moor J commented that ‘a literal interpretation of [the regulation] would make a nonsense of the concept of habitual residence. The exact wording suggests that you have to be habitually resident and you prove that solely by mere residence for a period of six or twelve months. This cannot be right.’ Moor J was also persuaded by submissions made by the husband’s legal team regarding the Borras Report, the explanatory note produced by Dr Algeria Borras to accompany the regulation when it first came into effect. The English and German translations of the note omitted the word ‘habitual’, but other versions of the note – French, Spanish, Portuguese, Italian and Dutch, for example – all made explicit reference to habitual residence. As such, Moor J held that the Munro interpretation was to be preferred. He noted that while this put him in the uncomfortable position of disagreeing with Munby J and Peter Jackson J - judges who had gone on to become the President of the Family Division and a sitting Lord Justice of Appeal, respectively – they had not had the benefit of the arguments that were before Moor J in Pierburg.

It is hoped that Pierburg brings an end to over 10 years of uncertainty regarding the question of how to determine whether an English court has jurisdiction to deal with a divorce. Practitioners should note that it sets the bar to establish jurisdiction significantly higher than it had been in Marinos, and can lead to stark outcomes: Mrs Pierburg faces receiving scant financial provision from the German courts, although as Moor J noted, she may have a remedy in Part III of the Matrimonial and Family Proceedings Act 1984. Ultimately, Pierburg sounds a cautionary note for would-be ‘forum shoppers’ who would hope to rely on the mere fact of their residence in England for a 6- or 12-month period to have their divorce heard here.