Stuart Clark, partner at the International Family Law Group LLP, considers the judgment of Moor J in Pierburg v Pierburg in the context of the ongoing debate as to jurisdiction for divorce in England and Wales, where habitual residence is based on indents 5 and 6 of Article 3 of Brussels II bis.
What are the practical implications of this case?
Indents 5 and 6 of Article 3 of Council Regulation (EC) No 2201/2003 (Brussels II bis) provide that a petitioner may bring a divorce in England and Wales where they are habitually resident on the basis that either:
- they have resided in this jurisdiction for at least a year immediately before the application was made, or
- they have resided in this jurisdiction for at least six months immediately before the application was made, and are domiciled in England and Wales
These two indents are usually the choice of the forum shopper. By using these indents rather than indents 1-4 of Article 3 of Brussels II bis, jurisdiction for divorce lies more in the control of the petitioner rather than the respondent. The willing petitioner can choose to root themselves in England and Wales so as to establish jurisdiction and the potentially more advantageous financial outcomes that come with a divorce in this jurisdiction.
But the interpretation of these indents has been a matter of widespread debate. Simple residence and habitual residence are, in England and Wales at least, legal terms of art carrying different meanings. The former, contrasting to the latter, has been established as being a looser connection. One can have more than one residence, but only one habitual residence. The latter is the fixed centre of interests carrying with it more weighty implications for the level of connection. It is tested not merely quantitatively by the period of time spent, but also qualitatively by the nature of the connection. While residence requires more than a mere casual presence, its ordinary and natural meeting should be used, it is one of the places a petitioner lives, it does not need the settled intent that is required so as to establish habitual residence. A habitual residence can be abandoned in a day but may require some time, or some fixed purpose, to acquire it.
The so-called Marinos/Munro debate (per Marinos v Marinos  EWHC 2047 (Fam),  2 FLR 1018 and Munro v Munro  EWHC 3315 (Fam),  1 FLR 1613) hinges on what is required for the 12 (per indent 5) or six (per indent 6) months preceding the presentation of the divorce petition. Habitual residence in England is required on the day of issue. Does the level of residence over the preceding six or 12 months prior have to be habitual or simple?
Munby J (as he then was) in Marinos interpreted indent 5 as requiring habitual residence at the time of the issue of the divorce petition and only mere residence for the preceding 12 months. Bennett J, obiter in Munro, preferred the approach of requiring habitual residence for the preceding period.
Peter Jackson J (as he then was) in V v V  EWHC 1190 (Fam),  2 FLR 778 preferred the Marinos approach, but this was again at first instance and there has been no appellate authority. The Court of Appeal in both Saward v Saward  EWCA Civ 1060 and Tan v Choy  EWCA Civ 251,  1 FLR 492 agreed that the debate needed resolution, but neither case was appropriate on the facts.
There was a missed opportunity to resolve the dispute in De Gafforj v de Gafforj  EWCA Civ 2070,  All ER (D) 01 (Oct) where the husband appealed a finding in favour of the wife on the Marinos basis. His appeal was leapfrogged to the Court of Appeal by Baker J, given the Marinos/Munro dispute, but was later dismissed, not on the merits but owing to a failure by the husband to purge the breach of a Hadkinson order which required him to pay interim maintenance and a legal services order.
Moor J was asked in Pierburg to determine, again at first instance, whether the Marinos or Munro approach should be applied to indents 5 and 6. The practical implications of Pierburg are that practitioners will now have yet another authority to guide them—or perhaps to muddy the waters—in relation to this issue. It is an issue of central importance given that indents 5 and 6 are the most heavily relied on indents in our international divorce work. Litigants must have certainty as to the jurisdictional grounds they may rely on when bringing a petition in England and Wales. There must be a standardised approach both in this jurisdiction and across the EU. Pierburg brings another authority to the table, albeit only at first instance and with no appellate precedence over the previous judgments.
What was the background?
The husband was born in Germany in 1945, the wife in Potsdam, in what was then East Germany, in 1949. The parties met in Dusseldorf in 1981 and married in 1985. The family moved to Switzerland in 1999/2000, and they separated in February 2017.
The wife said that she moved to England on 12 July 2017. This was disputed, and the husband said the date of the move was nearer 15 August 2017—the difference of 34 days was important.
The wife issued a divorce petition in England on 12 January 2018, asserting that she was habitually resident on 12 January 2018 and had been resident in England and Wales for six months prior, since 12 July 2017. She also said that she was domiciled in England and Wales. On this basis, and on a Marinos interpretation, she said that she had indent 6 jurisdiction. In the alternative, she said England had jurisdiction under a Marinos interpretation of indent 5 (based on 12 months residence since at least 12 January 2017) or that England had jurisdiction under a Munro interpretation of indent 6 (saying she had become habitually resident in England on 12 July 2017).
The husband asserted that the wife did not become resident, let alone habitually resident in England until 15 August 2017. In the event that she became resident in England on 12 July 2017, this was not sufficient on the basis of a Munro interpretation of indent 6. He said that she was not domiciled in England in any event.
What did the court decide?
Moor J examined the various different language versions of Article 3 of Brussels II bis, in particular looking at the French, Spanish, Italian, Portuguese and Dutch versions all of which seemed to suggest that ‘residence’ and ‘habitual residence’ were interchangeable terms for the purposes of indents 5 and 6. The EU provides its legislation in the languages of the constituent Members States and there is a great deal of inconsistency across the EU.
Moor J also referred to Council Regulation (EC) No 883/2004 in relation to social security provision in which ‘residence’ is defined as ‘the place where a person habitually resides.’ He disregarded submissions citing the explanatory report prepared by Dr Alegria Borras on Brussels II bis, which refers to the indents requiring ‘habitual residence combined with other elements’ stating that the ‘other elements’ were time periods rather than a different qualitative form of residence, ie simple residence.
Moor J came down on the Munro interpretation of the indents. He found that there was no jurisdiction for the wife to issue her petition on 12 January 2018, as while she was habitually resident in England on that date, she did not have the requisite habitual residence for the six months prior.
And so, we have another voice in the debate, this time on the Munro side and we await a determinative appellate decision. This is not likely to be the case for it however, given the findings of Moor J at first instance that the wife was not domiciled in England for the purposes of indent 6 and that the earliest date she became habitually resident or even resident in England was 15 August 2017, less than five months prior to the issue of the petition and therefore not sufficient for either the Marinos or Munro interpretations. If an appeal is made on this issue, then the Court of Appeal can finally grapple with the matter and may (subject to the continued membership of UK in the EU) then seek the input of the Court of Justice to settle the debate once and for all.
Interviewed by Devon Marshall.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Stuart Clark is a Partner at iFLG and has a wide breath of experience in all issues arising from the breakdown of a relationship but particularly specialises in financial and forum matters. His work involves complicated trust and partnership issues when often quick advice needs to be obtained from a specialist lawyer in another jurisdiction to run concurrently to his cases in hand. At The International Family Law Group LLP we are always acutely aware of the need to privacy and discretion in relation to our client’s affairs. If you are affected by the matters raised in this article, please do not hesitate to contact us on firstname.lastname@example.org or directly to the author on email@example.com.
This article was first published in Lexis PSL Family Law online.