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Petitioner who visited London home regularly cannot divorce there

Monday, 15 April, 2019

A German woman who lived with her husband in Switzerland for many years until their separation in 2017, and then moved to their second home in London, has failed to establish England as the forum for her divorce proceedings.

The couple, Jurgen and Gisela Pierburg, who are 73 and 69 respectively, married in Germany in 1985. The husband is wealthy, and, acting on professional advice, the pair left Germany in 1999 to live in Switzerland for tax reasons. They have one son, for whose benefit Jurgen Pierburg bought a flat in Belgravia to inhabit while studying there. Pierburg still owns a lease on this flat.

In February 2017, the marriage broke down and Gisela Pierburg (known as Clarissa) moved to England to live in the Belgravia flat, in either July or August 2017, apparently moving her belongings there gradually. On 12 January 2018, she applied for a divorce in England and Wales, claiming to be domiciled and habitually resident there, and that she had resided here for at least the past six months.

A month later, her husband issued his German divorce petition in the Berlin-Schoneberg District Court, on the basis that both spouses are German citizens. He also claims domicile in Germany and habitual residence in Switzerland, and denies that the England and Wales court has jurisdiction over the divorce.

He asserts that his wife was not domiciled in England and Wales on the date of her petition, was not habitually resident there on that date, and was not resident there for at least six months immediately before it. The nearest either of them came to living in England, he said, was when they considered buying a property in Sussex, due to fears about tax law in Switzerland.

It fell to Moor J in the England and Wales Family Court to decide the appropriate forum on the facts. Clarissa Pierburg gave a long statement, with additions from friends, showing she had become closely integrated into English society and that she had little personal connection with either Switzerland or Germany.

However, the judge did not accept her arguments. Noting that the burden of proof to establish jurisdiction lay with the wife, he said 'residence has to be something more than just a place where you or your spouse own a property ... It has to be somewhere where you reside as opposed to where you visit.'

He found that Clarissa had only visited the second home for opera and ballet nights and to see friends. 'I accept she had a home here. I accept she visited it regularly, but she did not reside here as she basically confirmed in her oral evidence when she said she 'visited' regularly. She came here for the opera, for the ballet, to visit Dumfries House and to see friends [...] but she did not live here. Her decision in St Moritz in February 2017 that she would reside here in the future was not sufficient until she did move here'.

He duly held that she had not established jurisdiction here as of 12 January 2018, the date of her petition, and that petition must be dismissed.

However, Moor also drew attention to the fact that Clarissa had signed a marriage contract when the couple married in Germany in the 1980s. The contract removes her entitlement to any financial remedy, including maintenance, 'notwithstanding a marriage to an exceptionally rich husband for 32 years which produced a son.' She has, he said, ‘nothing in her own name other than some jewellery'.

'I very much hope that it will be possible to reach a sensible and fair compromise of her financial claim', he said. 'If not, there may come a time when this Wife wishes to apply in this court pursuant to Part III of the 1984 Matrimonial and Family Proceedings Act for financial relief following an overseas divorce (Pierburg v Pierburg, 2019 EWFC 24)'.

Sources