Last month Mr Justice Moor, sitting in the English family court, reached an important decision in the divorce case of Pierburg v Pierburg – between Gisela Pierburg, "the Wife" and Jurgen Pierburg, "the Husband".

The so-called "Eurostar" divorce case concerned a dispute about whether the divorce should be resolved in England or Germany and indeed whether England had jurisdiction to hear the divorce petition.

The Wife, believing that she had met the necessary habitual residency test, submitted an English divorce petition on 12 January 2018. Exactly one month later, the Husband issued his German divorce petition in the Berlin-Schoneberg District Court. He claimed that as both he and his wife were German citizens, Germany was the correct jurisdiction.

As such, the Husband's divorce lawyers needed to prove to the English family court that it did not have jurisdiction over the divorce, declaring that the Wife had not been habitually resident in England for a sufficient period to meet the requirement under Article 3 of the Council Regulation (EC) No 2201/2003 prior to submitting the petition and that she did not meet any of the other relevant criteria.

The Background

The couple were wed in Germany in 1985 and lived there for around 15 years before moving to Switzerland in order to take advantage of Swiss tax relief schemes. The wife sought to demonstrate that she became domiciled in London on 12 July 2017 and therefore narrowly met the habitual residency test.

The Judgment

In deciding on Pierburg v Pierburg, the family court relied on the 2007 Eurostar divorce case of Munro v Munro.

Munro v Munro had established that in order to meet the six-month habitual residency test, a person would have to show that they had their main home in England and Wales for six months and that it constituted their permanent or habitual centre of interests during this period; failing that a person would need to prove "residency" for 12 months – i.e that they had a home in England and Wales but without the stricter criteria of habitual residency.

By applying the Munro interpretation, the court was satisfied that the Wife met neither the criteria for 12 months of residence nor that of six months of habitual residence. As such, her petition to have the divorce heard in England was dismissed. It will now be heard within the German jurisdiction.

However, there may still be some room for Mrs Pierburg to have aspects of her case, specifically in respect of a financial settlement, heard in England. If the German system awards her no or limited financial provision, as the court interpreted from a reading of the marriage contract, she may still be able to make an application to the English court under Part III of the Matrimonial and Family Proceedings Act.

What the Pierburg v Pierburg Ruling Means for Cross-Border Divorce Cases

Justice Moor's decision gives weight to the Munro interpretation of Article 3 of the Council Regulation (EC) No 2201/2003. However, it does not supplant the conflicting decision of Marinos v Marinos which focused on the parties having two residences (in this case a house in Greece where the husband and children lived and a house in England where the wife worked), but only one habitual residence each. It is unlikely that divorcing parties will have clear direction in this regard until a similar matter is ruled on by a higher court.

Jurisdictional Differences

London is known as the divorce capital of the world and is home to some of the top divorce solicitors in the field. English courts have a reputation for offering generous divorce financial settlements that typically favour wives when compared to settlements reached in other jurisdictions. So, many high-value divorce financial settlements are decided in London

This was relevant in Pierburg v Pierburg, not least because in England and Wales there is no limit to the duration for which payments can apply, whereas in Germany maintenance tends only to be awarded until the financially weaker party is able to achieve financial independence.

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