Pierburg v. Pierbug 2019 EWFC 24

Facts :

  • The Husband (‘H’)
    and the Wife (‘W’) began cohabiting in 1983 and married in Germany in 1985.
    Shortly before the marriage, they entered into a marriage contract under German
    law electing the matrimonial regime of separate property. By doing so, they
    agreed that neither party would have any claim to the assets of the other upon
  • H and W lived in
    Germany until 1999 when they moved to Switzerland for tax purposes. They
    separated in early 2017 after 32 years of marriage. They had one son.
  • On 12 July 2017, W
    flew to London. She spent a month flying back and forth between London and
    Switzerland until 15 August 2017 at which point she remained in London. She
    petitioned for divorce in London on 12 January 2018. H petitioned in Germany a
    month later.
  • W claimed that the
    English court had jurisdiction pursuant Article 3(1)(a) indents 5 or (6) of the
    Council Regulation (EC) 2201/2003 (Brussels IIa). H argued that the
    requirements of neither indents were met, and therefore, that the English court
    did not have jurisdiction to entertain the petition.

Article 3 of Brussels IIa

  • Article 3(1)(a)
    states that in matters relating to divorce, legal separation or marriage
    annulment, jurisdiction shall lie with the courts of the Member State in whose
    territory “the applicant is habitually resident if he or she resided there for
    a least a year immediately before the application was made” (indent 5) or “the
    applicant is habitually resident if he or she resided there for at least six
    months immediately before the application was made and is either a national of
    the Member State in question or, in the case of the United Kingdom and Ireland,
    has his or her ‘domicile’ there.”
  • These provisions
    had been the subject of differing interpretations by English courts. In Marinos v Marinos [2007] EWHC 2047
    (Fam), Munby J. as he then was, held that although habitual residence is
    required at the time of petition, it is not required for the 6 or 12 months
    preceding the date of petition. Mere residence sufficed. Meanwhile, Bennett J
    in Munro v Munro [2007] EWHC 3315
    interpreted the Regulation as requiring habitual residence for the entire
    period preceding the date of the petition and not just at the date of the

Held, dismissing the Wife’s petition:

Moor J.

  • Bennett J’s
    interpretation in Munro was preferable to Munby J.’s interpretation in Marinos.
    The Regulation, properly construed, required habitual residence for the entire
    6- or 12-month period. Moor J. stated:

[53]      “I
take the view that a literal interpretation of [the wording of the regulation]
would make a nonsense of the concept of habitual residence. The exact wording
suggests that you have to be habitually resident and you prove that solely by
mere residence for a period of six or twelve months. This cannot be right.


[62]      I
come down firmly in favour of the views of Bennett J and those of the authors
of Dicey and Rayden. I recognise this means that I disagree with Munby J and
Peter Jackson J. Of course, I recognise the great learning of the latter two
judges, one of whom became the President and the other who is currently in the
Court of Appeal, but they did not have the advantage of Mr Leech's argument. My
interpretation differs from theirs. I have come to the opposite conclusion.”

  • The omission of the
    word ‘habitual’ in the English and German translations of the explanatory note
    to the Regulation was an error as other versions made explicit reference to
    habitual residence.
  • In this case, W
    became habitually resident in England on 15 August 2017, not on 12 July 2017:
    she had only spent 12 out of 34 nights in England between these two dates and
    did not bring all of her important possessions with her to England until the 15
    August 2017.
  • Less than 5 months
    had passed between the 15 August 2017 and the date of W’s petition (12 January
    2018). Therefore, neither the requirements of Article 3(1)(a) indent 5 nor of
    indent 6 were met, applying the Munro
    interpretation of these provisions.
  • Even if the Marinos interpretation was preferred,
    however, W was not resident in England until 15 August 2017 and so could not
    satisfy the requirement of mere residency under indents 5 or 6.
  • Moreover, W was not
    domiciled in England on 12 January 2018. She remained domiciled in Germany has
    she retained many links to that country. Her mother, siblings, doctors,
    beautician, and florist were all there. She continued to use her doctors,
    beautician and florist from Switzerland and it would as easy to continue to use
    them from London.
  • Moor J noted that W
    faces receiving scant financial provision from the German courts if the martial
    contract is upheld. However, he remarked that W may have a remedy in Part III
    of the Matrimonial and Family Proceedings Act 1984.