Many clients who married abroad think they need to divorce in the country of their marriage, but it may be possible to obtain a divorce from the Scottish courts.
Can a Scottish court deal with my divorce?
Scottish courts can deal with a divorce, providing you meet specific residence or domicile rules and have a marriage that is legally recognised in the UK.
The law provides that Scotland will have jurisdiction where either you or your spouse are domiciled in Scotland when the divorce application is made, or you or your spouse are habitually resident in Scotland, having resided here for at least one year immediately prior to the divorce application.
A marriage abroad will be recognised in the UK if you followed the correct process in the country where you were married, and if the marriage would be allowed under UK law.
You will also need to provide the court with your original marriage certificate or an official copy. It may be necessary to obtain a certified translation of the certificate, if it is not written in English.
What do I need to prove before applying for a divorce?
Before applying for a divorce, you will need evidence to prove there has been an irretrievable breakdown of the marriage due to unreasonable behaviour, adultery, non-cohabitation for one year (with both parties consenting to the divorce), or non-cohabitation for two years where your spouse doesn't consent to the divorce.
Unless you are asking the court to make financial orders or orders relating to the children your application will require to state that:
(i) all financial issues are resolved, including division of the matrimonial property; and
(ii) if there are children of the marriage, under the age of 16, that arrangements are in place to ensure their best interests are met.
How much notice is my spouse entitled to of my application for divorce?
If your spouse is resident in the UK, the notice period for them to defend the divorce application is 21 days, unless the court has cause to shorten or extend the period. If your spouse is resident overseas, the notice period is usually 42 days.
Will my divorce in Scotland be recognised abroad?
Whilst it is always better to obtain confirmation from a family law expert in the specific country in question, if validly obtained under Scots law, a decree of divorce should be accepted in most jurisdictions.
If you wish to discuss this, or any other family law issue, please do not hesitate to contact us (link to contact form).