Divorce in Scotland with One Spouse Abroad
The world is now more connected than ever before, and as such international marriages and relocations are increasingly common. Many couples now build their lives across different countries, often moving for work, studying, familial reasons or ties. While this can bring exciting opportunities and lives, it can also create additional complexity if this relationship breaks down.
A common situation encountered within family law is where one spouse remains living in Scotland while the other moves abroad, either for employment or even after the couple has separated. In these circumstances, people often feel quite uncertain about how the divorce process now works, and in which country they should deal with this in.
- Can you get divorced in Scotland if your spouse lives abroad?
- Which country has jurisdiction over the divorce?
- How are assets divided if they are located in different countries?
- What happens if children are involved?
While these cases can be more complex, Scottish courts are well equipped to deal with this. However, timing and early legal advice can be critical in ensuring the process runs smoothly as possible.
If your spouse lives abroad and you are considering divorce, it is important to take advice early. Jurisdiction and timing can have a significant impact on the outcome. Our solicitors advise on cross-border divorce and can help you understand your options. Contact us on 0131 202 9450 or complete the online contact form to speak with our team.
Can you get divorced in Scotland if your spouse lives abroad?
In many situations, it is possible to divorce in Scotland even if your spouse now lives overseas. Whether the Scottish courts can deal with the case depends on whether or not they have jurisdiction, which simply means the legal authority to hear and decide the divorce.
Scottish courts will usually have jurisdiction if one of the following applies:
- One or both parties are habitually resident in Scotland;
- One spouse is domiciled in Scotland, or;
- Both parties last lived in Scotland and one of them still lives in Scotland.
Key terms to be aware of:
Habitual residence refers to the country where one person normally lives, and where their day-to-day life is based. This may involve looking at factors such as where someone works, where their family life is centred, and how long they have lives in particular place.
Domicile is a slightly different concept; it rather refers to a person’s more permanent legal connection with a country. In many cases it usually reflects where someone ultimately considers their long-term or permanent home to be, even if they are temporarily living elsewhere.
It is also important to remember that Scotland has its own legal system, even separate from that of England and Wales. This means the rules that govern divorce and financial settlements can differ significantly.
Where you choose to divorce can have significant impact on finances, division of assets, pensions and decisions relating to children. For this reason, determining the correct jurisdiction at an early stage can be incredibly important.
What happens if divorce proceedings have started in another country?
In international divorce cases, more than one country may have potential to have jurisdiction. For example, one spouse may be living in Scotland while the other has moved abroad and established residence elsewhere.
Where this happens, an important principle often applies: the country where the divorce proceedings are raised first may determine what court is to deal with the case.
This principle is sometimes referred to as “first past the post” approach in international family law. This premise can however be challenged. We have been involved in cases where there are two and sometimes more competing jurisdictions. In one case that has recently been heard by Lady Tait in the Court of Session in January, the wife’s case raised in Scotland was sisted (frozen) pending determination of a divorce case raised by the husband in Nigeria due to the fact that Nigeria was held to have a stronger connection to the parties than Scotland as neither party was resident in Scotland at the time of the hearing.
The country that ultimately deals with the divorce can have significant consequences, particularly when it comes to financial outcomes. Different legal systems approach financial settlement in different ways.
In Scotland, the law strongly focuses upon the fair division of matrimonial property, which generally refers to the assets acquired during the marriage until the agreed date of separation. Other jurisdictions may operate under broader discretionary systems that allow courts greater flexibility when deciding how assets should be divided or whether maintenance should be awarded.
Because of these inherent differences, obtaining legal advice at an early stage can be very important. Acting promptly can help ensure that that proceedings are raised in the most appropriate jurisdiction and avoid losing a potential strategic advantage.
Serving divorce papers abroad
If divorce proceedings are raised in Scotland but your spouse lives overseas, the court documents must still be formally served on them.
Service is the legal process of ensuring that the other party is properly notified about the court proceedings. The court must be satisfied that the spouse has received or been given proper notice of the court action.
When a spouse lives abroad, service must usually follow international service procedures. Depending on the country involved, this may include:
- Following procedures under the Hague Convention
- Instructing local lawyers or agents in the relevant country
- Using court-approved methods of international postal service where permitted
Serving documents internationally can sometimes take longer than serving documents within Scotland. Delays can arise through:
- Translation requirements
- Administrative processes within foreign courts or authorities
- Difficulties locating the other party
If service is not carried out correctly, it can delay the process of the divorce. Ensuring that the correct procedures are followed from the outset can help avoid unnecessary complications.
Financial Division in cross-border divorces
Financial matters can become more complicated when a divorce involves assets located in different countries.
Under Scots law, financial provision on divorce focuses on the concept of matrimonial property, in general terms:
- Matrimonial property should be divided fairly, the standard being equally
- It usually includes assets acquired during the course of the marriage until the date of separation
- The value of those assets is normally assessed at the date of separation
However, international cases can introduce additional challenges. These might include:
- Property located overseas
- Pensions held in another jurisdiction
- Foreign bank accounts or investments
- Business interests abroad
- Currency fluctuations affecting the value of those assets
Another important factor is enforcement. Even where a Scottish court makes a financial order as part of the divorce, enforcing that order can sometimes require action in another country.
In some situations, this may involve seeking recognition of the Scottish court order in the relevant jurisdiction or working with lawyers overseas to ensure the order can be implemented locally.
Considering these issues at an early stage can help ensure that any financial settlement reached is realistic and capable of being enforced.
What about children?
Where children are involved, international situations can raise additional legal considerations for a divorce.
Scottish courts can generally make decisions about the children if the children are habitually resident in Scotland. This meaning Scotland is considered to be the centre of their day-to-day life. If a child is living in another country however, jurisdiction may lie with the courts of that country instead.
Internation family disputes involving children can also involve legal frameworks such as the Hague Convention on International Child Abduction, which deals with situations where children are wrongfully removed from their countries of residence.
Some of the issues that may arise in cross-border cases include:
- Contact arrangements where parents live in different countries
- Travel arrangements and permissions
- Relocation disputes where one parent wishes to move abroad with a child
Because these situations can be complex, obtaining specialist legal advice is particularly important when international child arrangements are involved.
Do you need your spouse’s consent?
In Scotland, a divorce can proceed with consent or without consent, depending on the circumstances.
Where both parties agree to the divorce and there is no outstanding financial claims and no children under the age of 16, it may be possible to use the simplified divorce procedure.
However, where:
- One spouse does not consent,
- Financial matters still require to be resolved, or
- There are children under the age of 16
The divorce will usually proceed under the ordinary court procedure.
Even where one spouse lives abroad or does not actively participate in the process, it may still be possible for the divorce to proceed provided the correct legal procedures are followed.
Divorce cases involving spouses in different countries can raise complex legal and practical issues. Questions about jurisdiction, international service procedures and cross-border financial arrangements can all influence how a case should proceed.
Frequently asked questions
Can I divorce my spouse in Scotland if they refuse to respond from abroad?
Yes. If your spouse does not respond, the divorce may still proceed if proper service has taken place and the court is satisfied legal requirements have been met.
How long does an international divorce take in Scotland?
Timescales vary. Straightforward cases may take a few months, but delays can arise where there are jurisdiction disputes, overseas service, or complex finances.
Do I need a lawyer in both countries for a cross-border divorce?
Not always. A Scottish solicitor can handle the divorce, but a lawyer abroad may be needed where there are overseas assets or enforcement issues.
Can Scottish courts deal with property or assets held abroad?
Yes. Scottish courts can consider overseas assets, but enforcing orders abroad may require additional legal steps in that country.
What happens if my spouse starts divorce proceedings in another country first?
The court where proceedings are raised first may deal with the divorce, though this can sometimes be challenged depending on the circumstances.
Will Scottish law still apply if my spouse lives in another country?
If Scottish courts have jurisdiction, Scots law will usually apply, though cross-border cases may involve interaction with other legal systems.
Contact us for clear legal advice on Cross-Border Divorce
Seeking legal advice at an early stage can help clarify your options, avoid unnecessary delays and ensure that your interests are protected from the outset.
If you are considering divorce and your spouse lives abroad, speaking with a family solicitor can help you understand the process and the choices available in your circumstances. A solicitor with experience in cross-border cases can guide you through the legal requirements and help you move forward with greater certainty.
Contact us on 0131 202 9450 or complete the online contact form to speak with our team.
