A recent case has added to the debate about when the English Court will have jurisdiction to deal with an international couple’s divorce. It’s usually dependent on habitual residence - a legal concept which means that someone has their centre of interests in that country (this includes things like work, school, doctors, social life etc.).
It’s well established that if one or both parties are habitually resident in the UK, then an application can be made to the English Court. However if the respondent lives abroad, the petitioner needs to show that they’re not just habitually resident here but that they‘ve also lived here for a period of one year (or six months if they are also domiciled here) before they issue their petition.
There's been a debate as to the interpretation of the 12 month living requirement – does this mean the individual has been habitually resident for the 12 month period or does simple residence for 12 months suffice? There have been differing views in the High Court – Mr Justice Munby (as he then was) in the case of Marinos found that only residence was required for the period, whilst Mr Justice Bennett in Munro thought it had to be habitual residence.
Now in Pierburg, Mr Justice Moor has found that habitual residence is required. This raises the bar as it’s a harder test to meet.
The background to the case is that the very wealthy couple were both of German origin. They married in Germany and lived there before moving to live in a Swiss chateau for tax reasons. They leased a flat in Belgravia and their son was educated in England. The wife moved to England around July or August 2017 and petitioned for divorce in England in January 2018 before the husband issued his German petition in February 2018. The German Court, as is required under the existing European regulations, put their proceedings on hold so that the English Court could decide whether it had jurisdiction.
Looking at all the facts, Mr Justice Moor found that the wife had not been habitually resident in England for long enough before she issued her petition (and she wasn’t domiciled here so couldn’t claim she only needed 6 months). As a result, subject to any appeal by the wife, it seems the husband’s German petition will now proceed.
The wife was clearly keen to have the matter heard here and the impact of this decision for her could be extreme - there is a German prenuptial contract which gives her absolutely nothing despite 32 years of marriage and a grown up child. If the German Court upholds that contract, she could be left with very little, despite the luxury and wealth she’s been used to for over 30 years. An English Court in such circumstances would be very unlikely to hold the wife to such an unfair agreement.
However it might not be the end of the story as far as the English Court is concerned. In his judgment Mr Justice Moor notes that the wife may well have a “Part III” claim here in due course if the matter isn’t compromised. This is a financial claim which can be brought here after a foreign divorce in certain circumstances, even if the foreign court has already made a financial order. The prospect of this may provide some incentive for the husband to try to reach an agreement rather than go through further rounds of litigation.
For lawyers advising from a strategy point of view, it can be a balancing act between issuing quickly to ensure your petition is first in time and waiting long enough to have the requisite period of habitual residence. How this will work after Brexit is another matter; the European Regulation will fall away leaving us far less clear about how foreign courts will deal with cases which have an English dimension.
As for the habitual residence/residence dispute, if the wife does appeal and the Court of Appeal rules on the issue, this would bring some welcome clarity.
Published: June 2019
A monthly briefing from Irwin Mitchell Private Wealth
June 2019
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