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The Importance of Establishing Jurisdiction During Divorce

on Monday, 13 May 2019.

In the recent case of Pierburg v Pierburg, the issue before the court was whether the wife had jurisdiction to apply for a divorce in England and Wales.

How Is Jurisdiction Established?

In order to have jurisdiction, the court must be satisfied that one of the following conditions applies:

  • both parties are habitually resident in England and Wales

  • the respondent is habitually resident in England and Wales

  • both parties are domiciled in England and Wales

  • the petitioner is habitually resident in England and Wales and has resided there for at last a year prior to filing the divorce petition

  • the petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the petition

This case rested on whether the petitioner, Mrs Pierburg, had been domiciled and habitually resident in England and Wales for 6 months or whether she could be considered to have been habitually resident for 12 months prior to filing her divorce petition with the court, In order to be domiciled in a country, it must be considered your permanent home where you live or intend to return to live. Habitual residence is the place in which your life is primarily based.

The parties married in Germany in 1985 and had lived there during their marriage before moving to Switzerland in 2000 for tax purposes.

The parties separated in February 2017 and moved into separate households. The wife claimed that she had moved to London on 12 July 2017. However, the husband asserted that she did not move until 15 August 2017. This point was crucial as the wife issued divorce proceedings in England on 12 January 2018.

Why Was This Important?

The husband contested the divorce on the basis that the courts of England and Wales did not have jurisdiction to proceed with the divorce, as Mrs Pierburg had not been habitually resident and domiciled in the UK for 6 months prior to her application, nor had she been habitually resident in the UK for 12 months before filing for a divorce. He then issued his own divorce proceedings in Germany on 12 February 2018.

This was problematic for Mrs Pierburg, due to a marriage contract they had signed which waived any right to her husband's property or any claim for maintenance. This was even in the event of hardship, unlike in the UK where the court considers both parties' needs before upholding prenuptial agreements.

Mr Pierburg was a very wealthy man, it had been a long marriage and the parties had a son together. However, Mrs Pierburg would be left with nothing other than her jewellery if the divorce proceeded in Germany and the contract was upheld.

The wife argued that in the 12 months preceding her divorce petition, she had spent 172 nights in London and 160 in Switzerland, and that in the 6 months prior, she had spent 154 nights in London and just 26 in Switzerland. She also obtained witness statements from friends who she had spoken to about wanting to live in London.

The husband claimed that Mrs Pierburg had in fact remained domiciled in Germany, and did not have true intentions to live in the UK. He focused on the fact that his wife had never previously expressed a wish to live in London, and that she had retained a car, mobile phone, hairdressers, bank accounts, doctors and dentist in Germany. He also claimed that his wife was "German to the core" as she had asked a German company to fit their bathroom in London.

Did the Court Have Jurisdiction?

The judge ruled that whilst Mrs Pierburg was habitually resident in England and Wales when she filed her divorce petition with the court, the court could not establish jurisdiction as she had not been habitually resident for a year before the date of the petition. Furthermore, the court found that the she had not been habitually resident from 12 July 2017 as she had only stayed in London for 5 days before returning to Switzerland for 7 nights. The judge noted that she had come to England with a return ticket and had not brought with her "all her most important things".

The judge said that whilst Mrs Piersburg could be resident in more than one country, and she had come to London often for the opera, for the ballet and to see friends, she could not be considered habitually resident in the UK for 12 months before the date of her divorce petition. On this basis, the court did not have jurisdiction to proceed with the divorce.

Furthermore, the judge was not satisfied that Mrs Pierburg was not intending to return to live in Germany. Therefore, he determined that she remained domiciled in Germany. This meant that the court did not have jurisdiction to deal with the divorce and her petition was consequently dismissed.

The judge did however comment that he hoped the parties would be able to reach a "sensible and fair" compromise of Mrs Pierburg's financial claim. He further reminded her that she would potentially have a claim under "Part III of the 1984 Matrimonial and Family Proceedings Act for financial relief following an overseas divorce".

This case highlights the importance of establishing jurisdiction in divorce proceedings. It should also act as a warning to those with a spouse living abroad, where the divorce laws can differ. This is especially true with the upcoming uncertainty of Brexit.

If you have questions regarding divorce proceedings, or establishing jurisdiction, our Family Law team can help you. Contact Sam Hickman on 0117 314 5435, or complete the form below. 

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