If you or your spouse have international – or even inter UK – connections, then there may be more than one country that has the authority to make decisions in relation to you and your family. Under Scots Law, you or your spouse's domicile and/or habitual residence will determine whether the Scottish courts have the authority to hear an action of divorce. Approaches to family law vary markedly between countries and so the country in which you divorce can have a big impact on the outcome of any financial matters, as well as any issues relating to the care of your children.
So, if you are living in one country and you are served court papers from another country, what should you do?
1) Who should I speak to?
If you are served with court papers your first step should always be to speak to a solicitor qualified in the law of that country. They will be able to advise you as to whether there is anything you need to do immediately to protect your position.
It is also sensible to speak to a solicitor qualified in your 'home' country. This may be the country you are originally from or it may be the country you are currently living in. It may be that it is to your advantage to try to have matters determined in your 'home' country.
2) Should I tell my lawyer that I'm considering divorcing in another country?
You should let your lawyer know if you are considering raising proceedings in another country so that they can discuss the advantages and disadvantages of this with you. They will also be able to tailor their strategy to best protect your position.
3) Can I stop my spouse's application to divorce in another country?
This depends on a range of factors. Many countries have rules of reciprocity. This means that they will acknowledge the decision of a judge of another country and may choose not to consider a case if it is already before the courts of another country. Many European courts have rules in place which say that if a court process has already started in another European country then the courts of the second country will refuse to become involved. This can lead to a "race to the court".
Within the UK, there are rules in place regarding which court takes priority should two courts be asked to make a decision. If competing actions are raised in Scotland and in a court in England & Wales, the court in the country in which the parties last lived together as spouses will have the authority to make the decisions on divorce, regardless of which court was engaged first.
Where competing actions are raised worldwide, and where the countries concerned have no treaty or agreement in place, the courts may both consider that they have jurisdiction and they may both continue to adjudicate on your separation. This can lead to complicated and expensive court processes running in two countries concurrently. Legislation in Scotland provides for either party to a divorce action to request a discretionary "sist" (i.e. to pause) a Scottish divorce action if there is an action ongoing in another, more convenient forum. Several factors are considered when assessing which country is the most "convenient" forum. This includes the need for interpreters, barriers to access to justice, the physical location of the parties and any assets and the enforceability of judgments.
In Scotland, there is provision for an application to be made to the court for financial provision post a foreign divorce, in certain circumstances.
4) Does it matter?
Yes. Different countries can have very different approaches to divorce. Some countries operate a 'fault' based system where wrongdoing of one party must be established before divorce will be granted, whilst other countries allow 'no fault' divorce, where the parties' choice to separate can be enough to allow a divorce. This means that in some countries you can be divorced more quickly or more easily than in others.
Different countries can also have very different approaches to how finances are managed on separation. Some countries have generous provisions for a spouse on lower or no income following divorce through the payment of alimentary sums. These are monthly payments from one spouse to the other that can continue, in some countries, for years after divorce. In other countries, such as Scotland, a "clean break" approach is favoured. This means that the courts try to achieve a financial division that means neither spouse has an ongoing obligation to the other. The difference between the law even in England & Wales when compared to Scotland can be drastic.
How the care of your children is managed following your divorce can also be markedly different depending on the law which is applied. In some instances, the care of your children will only be decided by the country where your children live. However, in some cases a court will also consider the care of your children as part of your divorce application - even if they don’t live in the country of that court. Different countries can approach the care of children in very different ways. In Scotland the best interests of the child are at the heart of every decision the court makes.
If you are considering separating from your spouse then it is important that you seek legal advice as soon as possible.