Where you decide to divorce is just as important as when

In certain situations it may be possible for divorce to be dealt with the court of more than one country. Picture: Neil Hanna

If you are about to embark on divorce, it may be worth pausing to consider where to raise your divorce proceedings. Of course, you can’t just choose a random place with which you have no connection for divorce, but in certain situations it may be possible for divorce (and consequently financial settlement) to be dealt with the court of more than one country.

In a situation where a couple lived together in one part of the UK during their marriage and where, following separation, one of them has moved to a different part of the UK, it may be possible for divorce and financial settlement to be dealt with in either of those parts of the UK. So, why would you go to the trouble of looking into whether you can apply for divorce in more than one part of the UK?

The answer is because different laws apply in different parts of the UK, and the same set of facts can give rise to a very different outcome. English and Scots law deal with financial provision on divorce very differently. The courts of each country have a different approach to deciding not only which assets should be ‘in the pot’ for sharing, but also how those assets should be divided.

In England the law primarily looks at each party’s needs and tries to meet those needs from the totality of the assets and resources. The law in Scotland is less focused on needs but contains a much clearer definition as to which assets are in the pot for sharing. Scots law has a greater focus on equal sharing and achieving a clean break between parties as soon as realistic after separation. Pre-marriage or inherited assets are ‘ring-fenced’ in Scots law in a way that they are not in English law. In Scotland, the couple’s assets at the date of separation is the starting-point when it comes to financial provision, whereas English law is concerned with the parties up-to-date financial positions. The English system has long been considered to be rather more generous than its Scottish counterpart in relation to the duration of spousal maintenance. All of these may be reasons for thinking very carefully about where to initiate your divorce. There are also some important procedural differences in relation to divorce as between Scotland, and England and Wales. The grounds for divorce and the procedure for applying for divorce is different in each country.

Financial settlement must be dealt with in the same part of the UK which deals with divorce itself, so it is important at the outset to think about these issues carefully.

What happens in a situation where divorce proceedings are raised in two different bits of the UK? It’s not a case of the proceedings which were raised first winning the day. Instead, provided that neither set of proceedings has got as far as decree of divorce (or decree nisi in England and Wales) there is a set of rules which decides which set of divorce proceedings gets precedence. In essence, the proceedings which takes precedence are those proceedings which were raised in the part of the UK where the parties last live together as husband and wife.

As dual qualified family lawyers, we often come across situations where one party has chosen their preferred place in which to raise proceedings and the other party has engaged with those proceedings without considering if a different jurisdiction could get them a better deal. There are also situations where parties have reached an out-of-court settlement prior to divorce in one jurisdiction, only to find their spouse raising a divorce application in another part of the UK at a later stage looking for further provision on top of that deal. To safeguard your position it is always best to speak to a dual qualified solicitor, who can offer you advice on both English and Scots law, before making any decisions about jurisdiction.

Savita Sharma is a Consultant Solicitor at Morton Fraser

Where you decide to divorce is just as important as when – Savita Sharma