Individuals who have been divorced outwith the UK can be anxious as to whether their overseas divorce will be recognised in Scotland. Clients often find themselves consulting us to ascertain if there are further steps they need to undertake in Scotland to ensure their divorce is valid.
The legal framework for recognition of foreign divorces
The recognition in Scotland, and the rest of the UK, of divorces obtained outwith the UK is dealt with in section 46 of the Family Law Act 1986.
Section 46(1) provides that an overseas divorce, annulment or legal separation shall be recognised in certain defined circumstances. It distinguishes between divorces arising from proceedings, and ones where no proceedings were undertaken.
Divorce by way of proceedings
Section 46(1) deals with overseas divorces, annulments or legal separations obtained by means of proceedings, usually meaning granted by a court.
These shall be recognised here automatically if:
(a) The divorce, annulment or legal separation is effective under the law of the country in which it was obtained and
(b) At the date of commencement of the proceedings in that country either party to the marriage –
(i) Was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or
(ii) Was domiciled in that country; or
(iii) Was a national of that country.
Put short – provided you have been divorced in proceedings valid under the law of the country which has granted the divorce, and that at least one of you lived there, was domiciled there or a national of that country, Scotland (and indeed the rest of UK) will recognise your divorce without any further administrative or judicial procedure.
Should there be any dubiety regarding the effectiveness of the proceedings themselves in that country, then we at Brodies have links with firms worldwide and can seek expert advice from practitioners in the jurisdiction to advise on the validity locally of the divorce.
What if I have been divorced other than by proceedings?
Section 46(2) deals with circumstances where parties have been divorced other than by means of proceedings – this may for example arise in circumstances where a husband uses the Islamic Talaq form of divorce.
In those circumstances, an overseas divorce, annulment or legal separation will be recognised if:
(a) The divorce, annulment or legal separation is effective under the law of the country in which it was obtained and
(b) At the date the divorce, annulment or legal separation was obtained in that country
(i) Each party to the marriage was domiciled in that country; or
(ii) Either party was domiciled in that country and the other party was domiciled in a country where the divorce, annulment or legal separation is recognised as valid (probably an equivalent Islamic jurisdiction); and
(c) Neither party to the marriage was habitually resident in the UK throughout one year immediately preceding that date.
If your marriage has been brought to an end outwith the UK other than by proceedings then the means of terminating the marriage must be valid under local law and either each of you must have been domiciled in that country, or one of you domiciled there and the other in a country where the mechanism for ending the marriage is valid, and in addition neither of you can have had your place of habitual residence as the UK for the preceding year.
What if I wish to re-marry in Scotland?
The National Registers of Scotland has a "Foreign divorce questionnaire" for individuals planning to re-marry or register a civil partnership in Scotland. This asks individuals to declare certain facts with regards to the divorce proceedings, their habitual residence and domicile, to allow the Registrars to satisfy themselves that the foreign divorce can be validly recognised and the individual is free to re-marry in Scotland. Questions are also asked regarding the circumstances where a divorce was not granted by a court, or an individual obtained a talaq divorce.
Questions over validity of divorces, and arrangements for remarriage, can cause uncertainty and anxiety. Our experienced divorce lawyers are well placed to provide assistance and reassurance in such circumstances, with a wide international network to drawn on where necessary. Please don't hesitate to contact us for further advice.
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