Divorce is one of life’s most challenging experiences, and when it involves pensions, multiple countries, and different legal systems, it can feel overwhelming. I want you to know that you’re not alone. I’ve worked with many clients in similar situations, and my focus is always on finding practical, fair, and compassionate solutions to help you move forward with your life.
Over the past few years, I have been approached by a significant number of clients whose situation reflects the struggles of many couples dealing with cross-border divorce. While divorcing in various jurisdictions, including Australia, the US and Canada, they realised too late that one spouse’s pension—administered in Scotland— or in another part of the UK, could not simply be divided by the foreign courts. This is a legal and emotional hurdle that can feel insurmountable without the right guidance. But in most of the cases, we were able to find a way forward.
Understanding Pension Sharing in Scotland
Let’s start by breaking this down. In Scotland, pensions are often one of the most valuable assets within a marriage. When a couple separates, Scots law considers pensions part of the “matrimonial property” to be divided fairly. This is a legal principle that applies across many other jurisdictions as well.
The division of matrimonial property, including pensions, is governed by the Family Law (Scotland) Act 1985, which emphasises a “clean break” principle. The court aims to divide the net value of matrimonial property—assets acquired during the marriage—fairly, often equally. Pensions are typically shared via a pension sharing order (section 28(1)(e) of the Welfare Reform and Pensions Act 1999) or through a formal qualifying agreement (section 28(1)(f) of the same Act).
This process, while straightforward in Scotland, becomes much more complex when one spouse lives abroad or when the divorce is handled in another country. The key thing to understand is this: a foreign court order—whether from Australia, the US, or anywhere else—cannot compel Scottish pension providers to act and provide a pension share.
If you’re reading this and beginning to worry, please let me reassure you: we’ve helped many clients in similar situations, and there are ways to protect your financial future.
Jurisdiction: Can Your Divorce Be Handled in Scotland?
One of the first questions I’ll always ask is whether Scotland’s courts can have jurisdiction over your divorce. This depends on where you and your spouse are connected legally. Under Scots law, this is based on either habitual residence (where you live) or domicile of choice or origin (where you now deem to be your forever residence or where you are from).
If you’ve been living in Scotland for at least a year, the courts here may have jurisdiction. However, if you or your spouse or both of you now live abroad, things get a little more complicated. Domicile can sometimes provide an alternative route, but it’s tied to where you were born, where your parents were from or where you have a substantial connection. Unfortunately, ancestry alone—like having a Scottish great-grandparent—won’t be enough to establish a legal connection.
For couples who no longer meet these criteria, the Scottish courts won’t be able to handle the divorce itself. However, this doesn’t mean all is lost when it comes to pensions.
Foreign Divorce Orders and Scottish Pensions: The Problem and the Solution
If your divorce is taking place abroad, there’s an important detail to bear in mind: orders made by foreign courts cannot be enforced against pensions in Scotland. For example, if a Texan court orders a pension division, Scottish pension providers won’t recognise it because it doesn’t comply with Scots law.
Timing is also a critical factor. Under Scots law, if you’re planning to divide pensions through a court order or qualifying agreement, it must be submitted to the pension provider within two months of the decree of divorce being issued. Missing this window can render the agreement invalid. Extensions are sometimes possible, but they’re far from guaranteed.
How We Can Work Together
Every client’s situation is different, but here are some of the ways we can tackle cross-border pension issues:
Before the Divorce is Finalised
If you haven’t yet divorced abroad, it may still be possible to raise divorce proceedings in Scotland, which also seeks pension-sharing orders. This ensures the pension division can be implemented, even if you are both living in another country. I can help you raise proceedings here to put this in place, assuming we have jurisdiction to raise divorce proceedings in Scotland.
After a Foreign Divorce
If the divorce has already taken place, the options become more limited, but there may still be ways forward. Under the Matrimonial and Family Proceedings Act 1984, we can sometimes apply for financial provision in Scotland after a foreign divorce, provided the marriage had a strong connection to Scotland.
While this route is subject to strict conditions, I’ve had success with this approach in the past, and it’s something I’d carefully assess for you.
In cases where options 1 and 2 above have been ruled out, I have had recent success in petitioning Scotland’s highest court to apply the “ Nobile Officium” which is a special power the court has to fix a lacuna in the law.
Lastly, don’t forget the fact that in terms of current UK pension rules, for some clients, it might be possible to draw down a portion of the pension before the divorce is finalised. For example, many pension holders over the age of 55 can withdraw up to 25% of their pension tax-free. This could form part of a financial settlement, but we’d need to consider the long-term implications for your future carefully.
Expatriate Divorce with Cath Karlin
Over the years, I’ve seen how emotionally draining divorce can be, particularly when financial uncertainties like pensions are involved. I’ve worked with clients who felt helpless, trapped by the complexities of cross-border legal systems, and unsure how to protect their future.
What I want you to know is that I’m here to help. My job is to bring clarity to a confusing process and to fight for the best outcome for you. You’re not just another case to me—you’re a person with real worries, hopes, and needs, and I will always treat you with compassion and care.
At Cath Karlin Family Law, I specialise in resolving these complex issues. Whether you’re negotiating agreements, liaising with pension providers, or facing obstacles after an expatriate divorce, we’ll work together to find the best path forward.
If you’re dealing with a cross-border divorce involving Scottish pensions—or if you simply want advice on where you stand—please don’t hesitate to contact me. Taking the right steps now can make all the difference, and I’m here to support you every step of the way
