One aspect of the law that many members of the public are not aware of is that of applicable law, although it has a reduced role in family law cases, as compared to say contract or personal injury law.
The general rule is that a Scottish or English court will apply its own law in a family action. This will include questions relating to divorce (whether a party is entitled to a divorce) and finance (what the party is entitled to by way of financial settlement). However, many European countries, for example Germany, are open to applying foreign law in certain circumstances and this can have an impact on what the appropriate steps might be in a particular case.
Let's assume that British spouses, who were born in and have always lived in England until now, separate. The wife ("W") moves to Germany and the husband ("H") moves to Scotland. After three years, W decides to try divorcing H without his consent in Germany. The English courts no longer have jurisdiction as neither party is habitually resident in England.
In Scotland, a party can divorce after a period of two years separation without the other party's consent and in Germany it is three years (although there is evidence that this is not always insisted upon). But, in England, it is five years separation without consent. In both Scotland and England, parties can divorce earlier on the basis of either the unreasonable behaviour or adultery of the other spouse, but for the purpose of this example, we will assume that W can only rely upon the separation grounds - H has not committed adultery, and she cannot prove any grounds relating to behaviour.
On the basis of EU Law known as the "Rome III" Regulation, assuming that there is no agreement between the spouses, to determine whether W can divorce H, the German court will seek to apply in the following order, first, the law of the parties' joint habitual residence (W and H aren't still resident in the same country), second, their last habitual residence, in so far as one still resides there and it has been less than a year since separation (neither H now W still resides in England and it has been more than a year), and, third, the joint nationality of the parties. Only when none of these apply does the German court look to its own law. However, in this example H and W share common British nationality (with the closest link to England).
This means, although H and W can divorce in terms of either German or Scottish law, the German court ought to apply English law, which requires five years of separation and means W cannot divorce H in Germany until the end of the five year separation period required by English law. H or W would, however, legitimately be able to raise proceedings in the Scottish court, which does not consider foreign law when considering the grounds for divorce and only requires two years of separation.
Although it is commonly believed that Scottish and English family courts only apply their own law, there are examples where an issue unavoidably requires consideration of foreign law. For example, if parties have married abroad and there is a dispute about whether the marriage was valid conducted, you have to look at the law of the place of celebration (lex loci celebrationis). If the parties have heritable (or real) property on both sides of the border then the law of property of the place of the property is relevant (lex situs). This is because the law of the place of the property always governs immoveable property. If a party argues that court proceedings are ongoing in another country then whether they are actually ongoing will be a question of foreign law (lis alibi pendens). When dealing with international child abduction cases, many cases turn on whether there was a "wrongful removal" which requires consideration of the law of the child's habitual residence. Many of these issues arise as "ancillary" or "preliminary" to the actual issue of dispute.
Where foreign issues are involved in your case, especially in cases involving both England and Scotland, then Morton Fraser's Family Law Team are especially well placed to offer expert advice and perhaps may spot an important issue that may otherwise be missed.