How The Courts Decide On The Country A Couple Can Divorce In

In a recent High Court decision, Clarissa Pierburg, wife of Jurgen Pierburg, one of Europe’s richest men, was told she could not have her divorce heard in London.  It was reported that Mrs Pierburg claimed to the judge she would be left “penniless” if her divorce could not be filed in England.  However, the Court rejected Mrs Pierburg’s claim that she was resident and domiciled in London, despite the fact she and her husband owned a luxury property in Knightsbridge.

When an international couple divorce, deciding which jurisdiction the divorce should be heard in often results in a dispute.  English courts are viewed as extremely generous to financially weaker parties in high-net-worth divorce cases.  Therefore, a battle can erupt when, for example, a non-working spouse wants to file for divorce in London, and the wealthier party is desperate to keep the case out of the English courts.

For a Solicitor, the first consideration in a high-net-worth international divorce is to determine which is the best country to file the motion in, should there be an option.

The hare (may) win the race in the European Union

When it comes to a dispute over which jurisdiction your divorce should be filed in, especially within the European Union (EU), speed is of the essence.  Except for Denmark, jurisdictional matters relating to family law in EU member states is governed by Brussels II Revised.

Under Art 3(1) of Brussels II Revised, a judge can grant jurisdiction for your divorce to be heard in England or Wales if it can be proved:

  • You and your spouse are both habitually resident in England or Wales
  • You and your spouse were habitually resident in England or Wales, and one of you is still habitually resident there
  • The Respondent (the person who is not petitioning for divorce) is habitually resident in England or Wales
  • The Petitioner (the person who is filing for divorce) is habitually resident in England or Wales and has been for at least one year before the petitioning
  • The Petitioner is domiciled in England or Wales and has been living there for six months before the filing of the Petition
  • Both Petitioner and Respondent are domiciled in England and Wales

If a party begins divorce proceedings in an EU member state covered by Brussels II Revised, the Court of the member state which is first seised of the matter gains exclusive jurisdiction.  A Court is seised of a case when the document that starts proceedings (here, the petition for divorce or dissolution) is filed at court, providing steps are taken to serve it on the Respondent.

If there is a possibility of a ‘jurisdictional race’, your Solicitor will seek advice from a legal specialist in the competing member state so they have full knowledge of divorce proceedings in that country, enabling them to advise you accordingly.  To ensure your best interests are protected, your Solicitor must balance the need to act quickly with ensuring you have all the advice needed to make the decision on which jurisdiction is most advantageous to you.

What is habitual residence?

Your habitual residence is the place where you have your closest ties.

Although not defined in Brussels II Revised, the definition found in the Borras Report (Official Journal of the European Communities 1998, C 221/27), in the explanatory report approved by the Council, has consistently been referred to.  Habitual residence is described in the Borras Report as:

‘[32] … the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’.

In the case of Mrs Pierburg, despite the fact she and her estranged husband had a second home in Knightsbridge, the Court held she had only been living in London since 2017.

The judge stated:

“I accept she [Mrs Pierburg] visited it regularly, but she did not reside here as she basically confirmed in her oral evidence when she said she ‘visited’ regularly.

She came here for the opera, for the ballet, to visit Dumfries House and to see friends such as Lady Chichester, but she did not live here.”

Her husband’s lawyers argued that she was “German to the core” and that she remained ‘domiciled’ in Germany at the time she filed for divorce.

The courts will examine the links the couple has in England or Wales, both as a family and as individuals.  They will also consider whether they pay taxes and have transferred assets to the UK.  Other factors which may be considered is whether the children are in English schools and whether or not they speak the language and have been integrated into the community.

In summary

Establishing jurisdiction in international divorce cases is notoriously complicated.  For example, although you cannot be habitually resident in two places, you can be a resident of one country and habitually resident in another.

It is imperative to seek legal advice from an experienced family lawyer if you suspect your spouse may be thinking of filing for divorce.  That is the only way you can ensure your best interests will be protected

Rosie Bracher are specialist family law solicitors based in Barnstaple.  We have the knowledge and expertise to advise you on all matters involving divorce, children and family law.  Please contact our office on 01271 314 904 and arrange to speak to one of our team.