It is a common misconception that you have to get divorced in the country in which you married or where you live at the time of your separation. In this increasingly global world, some international couples, including those within Scotland or Ireland, have a choice of jurisdiction in which to seek a divorce. In fact, some jurisdictions may even provide a better outcome.
It is a common misconception that you have to get divorced in the country in which you married or where you live at the time of your separation. In this increasingly global world, some international couples, including those within Scotland or Ireland, have a choice of jurisdiction in which to seek a divorce. In fact, some jurisdictions may even provide a better outcome.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Naheed Taj. Naheed is a highly acclaimed family solicitor with a successful track record in dealing with complex and challenging family law, divorce, and child cases.
Getting divorced in Scotland or England
In Scotland, following Brexit, jurisdiction to bring divorce proceedings is based on one of two grounds: domicile or habitual residence. Habitual residence is defined as the place where an individual has their ordinary, usual residence. In order to bring divorce proceedings in the local Sheriff Court, either the applicant or the respondent must be habitually resident in Scotland for the period of one year ending before the application for divorce was raised. In addition, either party must be resident for a period of 40 days within the relevant Sheriffdom immediately before raising the action.
Domicile is established at birth and is the country in which a person is born, or flows from the domicile of their parents. This is called ‘domicile of origin’, but it can be lost if a person acquires a new ‘domicile of choice’, being the country in which they have their permanent home with a settled intention to remain there.
Someone’s domicile can differ from their habitual residence. For example, a person might live and work in another country on a work visa, but on the expiry of that visa, they may have no choice but to return to where they came from.
Occasionally, there will be competing divorces in Scotland and England when one party moves across the border. Assuming there is a jurisdictional basis for divorce in both places, the court in the country in which the couple last lived together as spouses will hold sway. This is irrespective of where the marriage took place and also of who brings the action first. In these circumstances, the court in the other country must pause their case.
Financial provision in Scotland is guided by sections 8 to 17 of the Family Law (Scotland) Act 1985. In particular, the principles in section 9 provide a “road map” to a fair decision. Fair provision is the goal here, but the principles must be followed, which rule the court implicitly. What this leads to is a rigid framework, or put in a more positive light, a more predictable set of rules that influences outcomes. This greater predictability helps family lawyers advise their clients, because they are able to anticipate the financial settlement inevitably given by the court. In England, the legal framework allows for more fluidity, which arguably brings with it greater uncertainty of outcome. Some legal professionals believe this leads to increases in litigation, and increases costs.
In Scotland, the courts favour the idea of a clean break between parties with periodical allowances (known as spousal maintenance in England), only being awarded if the split of the assets is deemed inappropriate or insufficient. If periodical allowance is ordered by the court, it is usually only granted for a period of up to three years following the divorce. This is not the approach favoured by the courts in England.
Getting divorced in Ireland or England
Following Brexit, the UK courts have revised jurisdiction criteria when one spouse lives overseas. The courts now primarily consider the habitual residence and domicile of the parties involved as opposed to the previous EU-wide rules. The prior EU rule stated that the first EU country to receive a divorce petition would handle the case now no longer applies because England is no longer subject to EU law. This means the country “first seized” of a divorce (the first to issue the divorce application) is no longer relevant. Divorces obtained in England continue to be recognised in Ireland, and vice versa.
A divorce in Ireland can only be started if you have been living separately from your spouse for at least two of the previous three years. This is a recent change and has been relaxed from spouses previously having to live separately for four of the previous five years. In addition, there must also be no reasonable prospect of reconciliation.
Divorces take place on a no-fault basis, as in England. However, a key difference is that the court in Ireland will not grant a divorce without the finances being addressed simultaneously. “Proper provision” must have, or will be made, for the spouses and any dependent children. In contrast, courts in England tend to approach division from a starting point of equality, whilst the Irish courts prioritise this proper provision, which is not quite the same thing.
In Ireland, a pension adjustment order is considered a last resort and only made if proper provision cannot be achieved through division of other assets. It is then made by reference to the “period of reckonable service” (years of the relationship/marriage), with typically a 50% division being applied.
Financial disclosure is required in all jurisdictions. In England and Wales, this is achieved by completing a Form E, whilst in Ireland it is an “Affidavit of Means” which requires between 1 and 3 years of supporting documents. Irish spousal maintenance orders tend to be made for life unless there is a change in circumstances, or the recipient remarries. With this in mind, the courts in Ireland are therefore more reluctant to make spousal maintenance orders than their English counterparts.
Although children matters are not typically addressed as part of the divorce in Ireland, it is common for them to overlap with divorce proceedings. This has the potential to cause a significant delay, particularly if one party is keen to re-marry. Another important distinction between England and Ireland is that a child’s legal dependence continues until 23, if in full-time education at college or university. This means that a parent could find themselves financially supporting their child way beyond the age 18 cut off in England and Wales.
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