Families are increasingly international. Couples meet abroad, move for work, hold assets in more than one country, or separate while living in different places. When a marriage with a cross-border element breaks down, one of the first and most important questions is not how the divorce will be resolved, but where. The country in which divorce proceedings are raised can shape the financial outcome profoundly, because different legal systems approach the division of assets and ongoing support in very different ways.
This article explains, in general terms, how a Scottish court decides whether it is able to deal with a divorce that has connections to more than one country. It is an outline only, and the rules are always applied to the particular facts of a case.
Jurisdiction depends on connection, not preference
A Scottish court does not take on a divorce simply because one party would prefer it to. It must have jurisdiction, which broadly means a sufficient legal connection between the case and Scotland. The two concepts that matter most are habitual residence and domicile. Habitual residence is, in essence, the country where a person has their settled and regular home. Domicile is a more technical idea, concerned with the country a person treats as their permanent home and to which they intend ultimately to return. A person can be habitually resident in one country while remaining domiciled in another.
In general, a Scottish court may deal with a divorce where one or both parties are habitually resident in Scotland, or where either party is domiciled in Scotland, subject to the detailed rules. Because the courts of more than one country may each have a proper basis to act, it is common for a case to be capable of proceeding in two jurisdictions at once.
The position after Brexit
Until the end of the Brexit transition period, jurisdiction in divorce cases across the United Kingdom and the European Union was governed by a shared European framework, which included a strict rule that the court first seised of the matter generally took precedence. That framework no longer applies to proceedings raised in Scotland. Jurisdiction is now determined by domestic rules, and where the courts of more than one country could competently deal with matters, questions can arise as to the appropriate forum and as to whether proceedings in one country should be paused in favour of proceedings in the other.
Why the choice of country matters so much
The stakes are high because outcomes diverge. Scotland has its own distinctive approach to financial provision on divorce, built around the fair sharing of property acquired during the marriage and a general preference for a clean financial break between the parties. Other countries may award long-term maintenance, treat inherited or pre-marital wealth differently, or divide assets on a wholly different basis. For a couple with international ties, the difference between raising proceedings in one country rather than another can run to very substantial sums.
Acting quickly can be decisive
Where more than one country could deal with a divorce, timing may be important. The party who raises proceedings first, in the jurisdiction that best suits their position, can secure a significant advantage. Anyone contemplating a divorce with a cross-border dimension should therefore take advice at the earliest opportunity, and before taking steps that might affect where the case can be heard.
How we can help
We advise clients with international connections on whether Scotland is the right forum, on the advantages and disadvantages of proceeding here rather than elsewhere, and on the practical steps needed to protect their position. Where a case touches another legal system, we work alongside trusted lawyers in the relevant country so that your Scottish and overseas advice pull in the same direction. If your separation has an international element, contact us to discuss where you stand.