A new legal authority has been published which clarifies when divorce proceedings can be started in England where the spouse starting the divorce has significant links to another EU country. While the position may change when the UK leaves the EU, there will be many international families that this affects in the intervening period and therefore family lawyers are taking great interest in this development, particularly because where a divorce takes place determines where financial matters between the couple are first resolved.
The case of Pierburg v Pierburg involves a German couple living in Switzerland for tax purposes. The wife moved to England after their separation, having had a home here which she visited regularly for short periods, during the marriage. The judge followed the existing EU rules which say that she had to show she had lived in England for six or 12 months before she started her divorce proceedings. However, the judge decided that simply living in England is not sufficient, she must be habitually resident here, meaning that she must have established a fixed and enduring home which is the centre of their interests throughout the six or 12 month period. A person's habitual residence does not have to be the only property they own or spend time in, but the amount of time they spend in that place compared to others is important. Their presence here cannot be "intermittent, transitory or decidedly temporary".
The rules also provide that, if a spouse can only show they have been habitually resident in England for six months, as opposed to 12 months, they also have to show that England had become their permanent and settled home to the exclusion of anywhere else. This is known as "domicile" and it is up to the foreign national to prove that their domicile has changed to England from where it was held previously, which will most commonly be the country where they were born or grew up.
In deciding these points judges look at practical indicators of an individual's connections with, and intentions towards, a particular country. This can include where friends and family are located, where someone votes or sees their doctor. Every person's circumstances are, of course, different. In Pierburg v Pierburg the judge decided the wife had not shown she had been habitually resident in England for the requisite period or that she was yet domiciled here. Therefore she could not divorce here and she must rely on the German jurisdiction because that is where she was found still to be domiciled. This is likely to have a significant and detrimental impact on the financial award she obtains from the divorce, although there is the possibility the English court could augment a German court's financial decision by Mrs Pierburg arguing for a share of the capital assets built up during the marriage (providing she has not remarried in the meantime).
These are very complex issues and the timescales involved are key. At the time a couple separates there are a myriad of emotional and practical considerations which can sometimes feel overwhelming. However, this new decision underlines that there are potentially fundamental ramifications for divorcees with international connections if they do not look ahead to how the legalities of the separation will be resolved and secure specialist support at a very early stage.
Emma Baillie is the head of our Family Finance team which regularly advises in international cases. She has been described by the independent directory, Legal 500, as "well-liked by clients and very strong in cross-border matters".