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Habitual residence, residence or domicile? Can I issue my divorce in Germany or in England?

15.04.2019 / Kerstin Beyer

By Francoise Bonnaillie-Valmorin:

England is still part of the European Union, maybe until 31st October 2019, who knows…?

A few days ago, England had the great pleasure of discussing jurisdiction for divorce, sending its interpretation message to European colleagues.

You may already know that you can issue divorce proceedings in Germany if you are both German or in England if it is the country of your joint habitual residence or if you are habitual resident here at the time of starting the divorce and if you have resided here for 6 months before you start your divorce and if you are also domiciled in England, or have resided here for the last 12 months if you are not domiciled in England. On 11 April 2019 a High Court judge dismissed the divorce petition of a German wife who wanted to divorce in England [2019] EWFC 24 (11 April 2019).

The Judge decided that the wife needed to demonstrate she was habitually resident in England at the time of issue + that she had been habitually resident for the period of 12 months preceding her petition for divorce. The big news is that the judge asked to prove “habitually resident” and not simply “resident” as it is clearly written in the text of the European Regulation!

Be careful when you choose your forum… After Brexit, England will renew its love for “sole domicile” and “forum conveniens” when deciding if a divorce can be pursued in England.

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