Where can I divorce?
A significant number of people now have relationships, families and/or children which tie them to more than one country. In the event of a relationship breakdown, a decision about returning to another country or thinking about divorcing there can be a real consideration.
For a couple living in Scotland, it is fair to assume that they will look to deal with their separation and divorce in Scotland. Whether they have connections to another country can be of no relevance. However, that is not always the case.
The rules on where you can divorce changed in Scotland post-Brexit. Couples can divorce in Scotland if: -
1. Either person has been habitually resident here for a year: or
2. Either person is domiciled here.
The rules mean that couples living outside Scotland can consider Scotland as a place to divorce, even if they are not living here.
When is a divorce international?
In short, where a couple have a connection to more than one country looking at the following factors: -
• Where the couple (and any children) are living at the time;
• Where the couple are domiciled;
• Where the couple have property;
• Where the couple were married or spent time abroad;
• Where the couple had a foreign or other marital contract and whether that agreement makes provision for where their divorce should be dealt with; and
• Heritable (bricks and mortar) property abroad, a foreign pension and where the parties work.
Any number of the factors noted above can have a bearing on the decision of where to divorce.
Why does it matter where you divorce?
The question of where you divorce is important because the range of potential financial or other outcomes of divorce across the world is vast. The difference in financial outcome can include:
• Whether a prenuptial or other marital contract will be given effect;
• How assets held by the parties before marriage or assets which are gifted or inherited are treated in a divorce;
• How a division of assets is worked out - whether factors such as standard of living and the needs of the parties will be taken into account in considering the finances;
• The way in which some countries consider spousal maintenance including for how long and at what level;
• Whether any separate financial provision is made for children;
• Whether the way that somebody has acted during the marriage is taken into account;
• How the country views assets such as pensions and how they would be divided including the date upon which they are quantified;
• Whether there are issues in terms of obtaining financial disclosure;
• Speed - how long matters are likely to take to progress; and
• Significant for most people, the cost of a divorce application and whether financial legal assistance will be provided.
There are also several other aspects which can steer the decision on where to divorce, including how families are able to resolve their differences – through agreement or other forms of alternative dispute resolution and the ease of access to specialist legal advice on family law.
Knowing that a decision made in one country can be enforced in another is an important consideration of where to divorce - the UK not being able to re-join the Lugano Convention has made this difficult.
What happens if you end up with a divorce application in more than one country?
The question of where to divorce and the factors to consider is one thing. In a worst case scenario, an individual can end up divorcing their spouse in more than one country.
It is possible to have separate divorce applications proceeding in more than one country. Before Brexit we were able to rely on certain provisions with other countries in the EU that whichever application started first would proceed and that would apply automatically with the other application being placed on hold.
Post-Brexit the automatic pause of an action no longer applies. The UK acceding to the Lugano Convention would fix that.
At present, if an application has been made in Scotland and another country (except England and Wales), it is up to the Court in which the application has been raised to decide if it is the most appropriate place to hear the case.
Determining that matter often comes down to the lawyers and Courts working together to decide what is the appropriate forum to deal with matters.
How much does an international divorce cost?
Dealing with competing applications for divorce is a costly exercise – two sets of lawyers, two sets of court costs and all else that entails.
It is important to weigh up with legal advisors in each place the cost of dealing with separate applications for divorce in more than one country. It is often the case that pursuing a more financially advantageous outcome in one country is the right approach but not if the cost of doing so is going to be more expensive than any financial gain. There are also considerations in terms of the continuing family dynamic to be considered in amongst those factors.
How long does an international divorce take?
If you have competing applications for divorce in more than one country, a divorce is going to take a lot longer as often the question of which country should deal with matters needs to be decided first.
Otherwise, the question of how long an international divorce takes will depend on which countries are involved and one of the factors in considering which country you wish to deal with matters is the cost and the time that it will take to deal with the divorce application to finalise matters.
The factors for individuals with an international connection to consider are numerous and should be carefully considered – for divorce the question of where is not always a simple one.
For families with international relationships, other legal issues can arise beyond divorce – the impact of where you marry; the recognition of relationships and marriage across countries; whether you can relocate with a child; and child abduction can all bring with them questions which span more than one place.
It is crucial to have professional advice when thinking about divorcing in Scotland to avoid any unintended outcomes. We have hands-on experience of advising clients on the issue of where to apply for divorce, including in situations where an individual works abroad, retains a strong connection with the country of their nationality and owns assets in multiple jurisdictions.
