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 divorce.
- 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 petition.
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.
