Rarely a month goes by without another news story of a parent who has lost custody of their child or been subject to unfair divorce proceedings in a foreign country. Most recently, a couple of British expatriates have found themselves subject to Sharia law in the United Arab Emirates (UAE), despite the fact that neither they nor their husbands were UAE nationals. In one case the husband was a French national and in the other he was British, but in both cases the wives lost custody of their children because of the application of UAE law to their situations.
In the event that a married couple or civil partners reach the point where they feel that divorce or dissolution is appropriate, the choice of court is one of the last things they might think of. However, it is one of the most important factors in the context of the legal action. The issue of jurisdiction is an increasingly difficult question in a world where international movement and relationships can blur the concepts of nationality or domicile. It is particularly important if you are an expatriate living abroad because of the possible consequences of your spouse or partner raising proceedings in a jurisdiction that might favour them unfairly.
Wherever you are in the world, the question of whether a particular country's courts can have jurisdiction over your divorce will depend upon the laws of that country. If either you or your partner is habitually resident in any EU Member State, excluding Denmark but including Scotland, then the courts of that state will have jurisdiction, unless both parties are domiciled elsewhere. If neither of you are habitually resident in any EU Member State, the only other basis upon which divorce proceedings can be raised in Scotland is if either party is domiciled in Scotland. Importantly, if your spouse/partner has chosen to raise proceedings in another country outside the EU, this does not necessarily prevent you from raising a competing action in Scotland if you meet the relevant criteria, and the courts may proceed with the action if they find that Scotland is a more appropriate jurisdiction.
If you would like any more information about the jurisdiction of Scottish courts in divorce actions, or in relation to any international aspects of separation, please contact a member of the Family Law Team, who are experienced in both domestic and international family law.