It is commonly believed that a divorce has to take place in the country in which the couple were married or in which they lived at the time of their separation. However, there are complex legal rules which determine where a person can seek a divorce. In this increasingly globalised world, some couples may have a choice of jurisdiction in which to seek a divorce. Some jurisdictions may even provide a better outcome for one party than the other.
What are the jurisdictional requirements to raise divorce proceedings in Scotland?
In Scotland, in order to apply for divorce, the applicant must be able to confirm that one or both of the following jurisdictional requirements apply:
- 1. The applicant or their spouse are domiciled in Scotland when the application is made; and/or
- 2. The applicant or their spouse is habitually resident in Scotland having resided there for at least one year immediately before the application is made.
In order to bring divorce proceedings in the local Sheriff Court, in addition to the above requirements, before the action is raised either the person applying for the divorce or their spouse must be resident at their address for a period of 40 days within that Sheriffdom. Habitual residence is a matter of fact and is, generally, the country in which a person lives and intends to remain.
Domicile of origin is established at birth and is usually the country in which a person is born, or flows form the domicile of their parents. However, that domicile of origin can be lost if a person acquires a new domicile of choice, that being a country in which they live with a settled intention to remain there. An individual's domicile can differ from their habitual residence.
What happens when one party seeks a divorce in England and the other party raises a divorce in Scotland?
Occasionally a situation will arise when one party to the marriage raises a divorce action in England and the other, at around the same time, raises a divorce action in Scotland. Assuming that there is a jurisdictional basis for divorce in both England and Scotland, the court in the country in which the couple last lived together as husband and wife will take precedence. Irrespective of where the marriage took place (whether in Scotland or in England and indeed whether within the UK or not) and irrespective of who raises the action first, the court in the other country must sist (pause) their case.
Will a divorce in another country be recognised in Scotland?
The answer to this question will depend on: (a) the country in which the divorce was obtained; and (b) the circumstances at the time of obtaining the divorce. Divorces granted in England, Wales and Northern Ireland are automatically recognised in Scotland regardless of the parties' circumstances at the time.
The recognition in Scotland of divorces obtained outwith the UK is dealt with by the Family Law Act 1986. The general position is that if divorce proceedings in another country were valid in accordance with the law of that country, and at least one party to the marriage lived in that country or was a national of that country, Scotland will recognise the divorce without any further administrative procedure required in Scotland. If there is any dubiety about that, a family law solicitor in Scotland can advise as to what, if any, steps require to be taken in order to deal with the recognition, or otherwise, of that divorce in Scotland.
The issue of whether a divorce granted in another country/jurisdiction is recognised in Scotland is an important one which, if not recognised, can have significant consequences for the parties involved. It is very important that if there is any doubt about this, family law advice is sought as soon as possible. For more information, please get in touch with one of our international divorce lawyers.
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