The quality and perceived generosity of English family judges has made this country one of the world’s most popular forums for divorce. However, as a High Court ruling in a big money case showed, the jurisdictional hurdles that foreign nationals must leap before ending their marriages here are far from straightforward.
The case concerned an elderly couple, both of them German nationals, who had a son during their 32-year marriage. The husband was exceptionally rich, but the wife had no assets in her own name, save her jewellery. By a contract which they signed before their marriage, they agreed that their property would be treated separately in the event of divorce. As a result, the wife was concerned that she would have no financial entitlements after the marriage broke down.
Following their separation, the wife was living in London when she lodged a divorce petition in England. However, in order to establish English jurisdiction, she had to show that she had been resident in this country for six months prior to issuing the petition and that such residence had become habitual. She also had to prove that she was domiciled in this country. The husband argued that she could meet none of those criteria and that the divorce should proceed in Germany.
The wife testified that she had fallen in love with England when she worked here as an au pair in the 1960s, that the only place where she could live happily was in London and that she had established her domicile of choice in this country. The husband denied that she had been settled in London for six months prior to lodging her petition. He also contended that her life remained focused on Germany and that she continued to be domiciled in her country of origin.
The Court accepted that the wife intended to make her home in London indefinitely. However, in preferring the husband’s arguments, it found on the evidence that she had only become habitually resident in England just short of five months before lodging her petition. Her family, doctors, dentist, beautician and florist were all in Germany and she had not cut her links to her homeland sufficiently to establish a domicile of choice in England. The English courts thus had no jurisdiction to entertain her petition.
Urging the former couple to reach a fair compromise, the Court noted the length of the marriage and the wife’s weak financial position. It would remain open to her, if the husband divorced her abroad, to seek financial relief against him in the English courts under Part III of the Matrimonial and Family Proceedings Act 1984.