Forum shopping & divorce tourism

Recently, Clarissa Pierburg, the former wife of one of Europe’s richest men, Jürgen Pierburg, won her High Court battle to divorce in England on the basis that she was domiciled here. Her initial attempts to issue here were met with failure, as she could not provide legally sufficient grounds to so do. To be successful issuing proceedings in this jurisdiction, if neither party is resident here, the petitioning party needs to establish that they have a sufficient connection to England or Wales to enable the divorce to proceed. Despite her initial failure, Pierburg eventually succeeded in proving this on the grounds of domicile i.e., where the person treats the country in question as being their permanent home, lives in or has substantial connections with it i.e. they hold a majority of their assets there.

Whilst the parties had initially reached a settlement agreement between themselves in Germany in 2020, which was equivalent to the wife receiving £12M, she later backed out, with a view to obtaining an enhanced order through the English courts. This, unsurprisingly, led to the husband accusing her of Forum Shopping (also known as Divorce Tourism) where a spouse elects to issue proceedings in one country based on the belief that it may be more financially favourable for them to do so than in another jurisdiction.

The Pierburg marriage had been a long one with children, and since 2000 English law had ruled that the bread maker was as important as the bread winner. The party who was not the main bread winner would therefore usually argue (as Clarissa Pierburg did) that she had supported her husband throughout the marriage, and they were a team. In divorce proceedings of this nature, the wife would usually assert that the starting point for the division of the assets should be on a 50/50 basis.

Despite this, the High Court held Clarissa to the initial agreement made in Germany. It did not allow the more generous approach it could have taken had the proceedings been issued here from the outset, and which Clarissa was more than likely to be expecting after moving the proceedings to the English courts.

Whilst this case stands on its own merits, it is also a powerful warning that the English divorce courts are not there for petitioning spouses to obtain a second bite of the cherry and achieve a more favourable financial settlement than they may have obtained in their initial petitioning jurisdiction. Indeed, there needs to be good reasons to go behind such an agreement, which was clearly lacking in the Pierburg case.

So, is there ever a good reason for Forum Shopping (divorce tourism)? The answer is yes, there can be, but as the person starting the divorce, you will need to ensure that you meet the criteria of that country to enable you to do so. In England and Wales, one or both of you would need to have been resident in this jurisdiction for a number of months or be domiciled here to enable you to bring an application before the English and Welsh courts.

Examples of when it may be beneficial to Forum Shop may be where a woman has very limited divorce rights in her country, or where the needs of both parties aren’t taken into consideration in the same manner as they would be in these courts, who judge each case on its own specific merits to achieve equality and fairness in the division of the matrimonial assets.

Therefore if, as the person starting the divorce, you have the option to do so in more than one jurisdiction, you should give careful thought as to what rights you have in each country under their own specific divorce laws, before starting the proceedings. As the Pierburg case illustrates, it can be risky jumping ship and changing jurisdictions for your divorce once you have started them, hence legal advice from a solicitor in each jurisdiction is advisable.

Joanna Abrahams, Partner at Valemus Family Law.