This is Part 2 in a series of blogs focusing on the particular issues caused by expat divorce for Scottish and English nationals. This week I'd like to look at some of the legal complexities regarding where to divorce.
"Can I get divorced in the UK?"
The obvious first question is whether, as an expat, you can raise divorce proceedings back "home" in the UK. The law is complex, but to simplify matters, there are two main connecting factors to the UK which might enable you to do so - if one or both spouses are either resident here or domiciled here:
- If you or your spouse have been living abroad, but are now resident within the UK, you may be able to raise divorce proceedings here, depending upon how long it is since the spouse moved back to the UK.
- If you and your spouse are living outwith the UK, you may still be able to divorce in the UK courts, depending upon where you are both domiciled. "Domicile" is a legal term, meaning the place where you intend to live long-term. It is difficult to change your domicile from the country of your birth. So, if you were born in Scotland, and intend to return to live in Scotland at some point in the future, your domicile will probably remain Scottish. If you and your spouse have different domiciles (for example, before moving abroad, you were born and lived in Scotland, and your spouse was born and lived in England) you will need careful advice about your particular circumstances. In some cases, if you want to be sure that you can divorce in the UK, you may need to actually move back "home".
"Can I get divorced abroad?"
The next question is whether you, or your spouse, can raise divorce proceedings in the foreign country where one or both of you are living.
When looking at this issue, the main distinction is between countries within or outwith the EU, as different rules apply.
Within the EU, there is a "first past the post" rule - the court in the country where divorce proceedings are first raised "wins". This is the case even in circumstances where another country arguably has a more significant connection to the marriage. You will appreciate that this rule means that for expat couples, it is vitally important to take expert advice as promptly as possible. It is also a rule which has been criticised (rightly, in my view) for not being conducive to potential marriage reconciliation. If your marriage has irretrievably broken down, the rule means that you may need to act quickly if you want to ensure that Scots or English law will deal with your divorce and finances, rather than the law of another European country.
As an added complexity, some EU countries (for example, Spain) will try to apply the law of the country of the spouses' joint nationality when deciding financial issues. So, if a Scottish couple wish to divorce in Spain, the Spanish court will apply Scots law (or a version of it).
Outwith the EU, the rules vary. Some countries will only grant divorce to citizens (rather than foreign residents), or only to those of the Islamic faith. Some countries are not so selective. We have had cases where one spouse has attempted to rush through a divorce under Islamic Sharia law, whether or not the couple are Muslim. Although the accompanying legal process for this can vary significantly from country to country, at its most simplistic a Sharia divorce can be as abrupt as pronouncing "talaq" ("I divorce you") three times. Obviously, if there is any possibility of this, you need to take expert advice very quickly.
Although not many separating couples relish the prospect of divorcing in a foreign country, it is not always a bad option - a good lawyer will help you to weigh up the pros and cons, including the different possible financial outcomes, in order to ensure that you are best equipped to make an informed decision.
You will see that the simple question "where can I divorced?" can sometimes have a very complex answer!