It is a common misconception that you have to obtain a divorce in the country in which you are married or in which you live at the time of your separation. However, this is not the case. There are complex legal rules which determine where a person can seek a divorce. In this increasingly globalised world, some international 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. Even where couples seek a divorce in Scotland there may be a choice of court depending upon the complexity of the case as to which court to apply to.
Seeking a divorce in Scotland, should the application be made to the local Sheriff Court or the Court of Session?
Whilst most divorces in Scotland are raised in the local Sheriff Court, in the area in which one or both of the parties reside, certain divorces may proceed in the Court of Session. There is a common misconception that only high value cases are heard at the Court of Session and whilst it is true that high-value cases, (those in which there are assets worth £100,000 or more), are often dealt with in the Court of Session, cases with complex legal points or international aspects can and should also be heard there. In a divorce action, where the matrimonial home, other heritable property or pensions are involved, this threshold is often easily met and therefore the parties will have a choice as to whether to raise in the local Sheriff Court or the Court of Session.
What are the jurisdictional requirements to raise divorce proceedings in a specific country or court?
In Scotland following our exiting the EU, jurisdiction to bring divorce proceedings is based on one of two grounds: domicile or habitual residence. In order to bring divorce proceedings in the local Sheriff Court, either the person applying for the divorce or the other party must be habitually resident in Scotland throughout the period of one year ending before the action was raised and resident and for a period of 40 days within that Sheriffdom immediately before the raising of the action. Habitual residence is defined as the place where a person has their ordinary, usual residence.
For some clients falling back on domicile to found jurisdiction can be helpful. Domicile is established at birth and is the country in which a person is born, or flows form the domicile of their parents. That domicile of origin, as it is known, can be lost if a person acquires a new domicile of choice, that being a country in which they have their permanent home with a settled intention to remain there. An individual's domicile can in fact differ from their habitual residence. For example, an individual might be living and working in another country on a work visa for many years. On the expiry of that visa the individual might have no choice but to leave that country and so might have retained their domicile here in Scotland. In those circumstances the individual could raise a divorce action in the Court of Session based on their domicile despite living in a different country. That might be recommended if the place in which they live is inhospitable in their approach to divorce.
What happens when one party seeks a divorce in England and the other party raises a divorce in Scotland?
Occasionally there will be competing divorces in Scotland and in England when couples separate and one party moves across the border. 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 hold sway. 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.
What happens when one party wishes to raise proceedings for a divorce abroad and the other party wishes to seek a divorce in Scotland?
Throughout the EU, jurisdiction for divorce proceedings is founded on the concept of habitual residence. Where parties have different habitual residences the lis pendens rule applies, meaning the national court where an action is first raised has jurisdiction and will take priority over any subsequent action raised in a different EU state. This rule also applied in the UK until 1st January 2021. However, since we exited the EU jurisdiction in Scotland jurisdiction is now based on: (i) the applicant's domicile on the day the action is raised; or (ii) if they were habitually resident in Scotland for one year immediately preceding the raising of the divorce proceedings.
Where proceedings are raised outside of the EU, jurisdiction will depend on that country's own jurisdictional rules, often based on habitual residence, but some may also be based on domicile or other factors. For example, in the UAE a new regime has been introduced for non-Muslim couples who live there and the rules giving effect to that regime are being fine-tuned and introduced at different times. The various Emirati States have recently introduced a two-court system – one for non-Muslims and one for Muslims.
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. Since we exited the EU, however, divorces granted in an EU member country are no longer automatically recognised unless they were granted prior to 1st January 2021.
In some cases, a foreign divorce may not be recognised at all, meaning that a further application for divorce will have to be made in Scotland if parties wish to rely upon it. Alternatively, whilst Scotland may recognise a foreign divorce, the foreign court may not have dealt with all of the matrimonial assets in Scotland. This may, in certain circumstances, allow a person to raise court proceedings against their former spouse for financial provision in Scotland after an overseas divorce.
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