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Pierburg v Pierburg [2019] EWFC 24 (11 April 2019)

Unsuccessful application for a divorce petition to be heard in this jurisdiction

The court was concerned with whether the petitioner wife's application to divorce the respondent husband should be heard in the family court of England and Wales, as per the wife's position, or in Germany, as per the husband's position. Both the husband and wife were born in Germany, where they married on 20 September 1985 and lived until 1999/2000. Thereafter, they moved to Switzerland for tax reasons. In February 2017, the relationship ended and the parties separated. The wife later moved to the United Kingdom whilst the husband remained in Switzerland.

The wife issued her divorce petition on 12 January 2018, and claimed to be domiciled and habitually resident in England and Wales, having resided here for at least six months immediately prior to the presentation of the petition. Shortly thereafter, on 12 February 2018, the husband issued his German divorce petition in the Berlin-Schoneberg District Court, claiming jurisdiction in Germany on the basis that both parties were German citizens. As such, the court had to determine as a matter of fact when the wife became habitually resident in the UK and whether she was domiciled in this jurisdiction in order to establish whether the criteria under Article 3 of the Council Regulation (EC) No 2201/2003 was met for the English court to hear the petition.

Prior to adjudicating the factual matrix of the case, the court considered the law around residence, habitual residence, and jurisdiction. In particular, a dispute arose between the parties as to what needed to be established to satisfy indents 5 (habitual residence one year before the application is made) and 6 (domicile and habitual 6 months before the application is made) under Article 3(a) of the Council Regulation (EC) No 2201/2003. The court noted that there was a dispute within the authorities about the interpretation of indents 5 and 6, with one facet following the reasoning in Marinos v Marinos [2007] EWHC 2047 (Fam) and the other preferring the interpretation provided in Munro v Munro [2007] EWHC 3315 (Fam). Having considered submissions from both parties, the Judge preferred the reasoning in Munro; however, he dealt with the proceedings in front of him on the basis of both interpretations in case his reasoning was incorrect.

In respect of the factual dispute, the court heard limited evidence from the parties. The Judge determined that the wife was not habitually resident in the UK as of 12 July 2017 and therefore could not establish indent 5 of Article 3(a) of the Council Regulation (EC) No 2201/2003, which requires one year of habitual residence before jurisdiction can be established. Likewise, the court held that the wife became habitually resident on 15 August 2017 and therefore did not fulfil the six month period of habitual residence, which is required under indent 6. Moreover, the wife did not satisfy the court that she had achieved domicile in the UK and the court found that she was domiciled in Germany at the time of issuing her divorce petition. As such, the wife's application for the divorce to be heard in this jurisdiction failed on both interpretations of the statute and her petition was dismissed.

Summary by Bianca Jackson, barrister, Coram Chambers

You can read the full judgment of Pierburg v Pierburg [2019] EWFC 24 (11 April 2019) on BAILII