What happens when an ex-pat marriage gets into difficulty? Can British ex-pats rely on the legal system back home to deal with their divorce and the financial issues flowing from that? Or are they stuck with the legal system of the country in which they find themselves living?
We are often consulted by individuals who find themselves in just that position. The answer is that, often, Britons living elsewhere can rely on one of the legal systems of the UK to deal with their divorce.
It all comes down to a question of domicile. We are all born with a "domicile of origin" connecting us with our place of birth. That domicile will remain with an individual notwithstanding that they may spend periods of time in a different country during their lives, unless it can said to have been replaced by a new "domicile of choice". That occurs where an individual can be said to have a settled intention to remain indefinitely in a particular place.
Whether a person has lost their UK domicile will depend on their particular circumstances. If there is a legal dispute about that matter, a court would be interested in: whether that person planned to live forever in their new country; whether they retain links with the UK; whether they plan at some point to return to the UK, and so on. It's fair to say that the legal hurdle for a change of domicile is high. In other words, many people living overseas, even for quite substantial periods, will nonetheless retain their UK domicile for legal purposes.
If an individual has retained their domicile of origin in the UK, then this may open the door to the UK divorce courts. The situation varies, depending on whether the other country involved is in the EU. There is a complex set of rules contained in a Brussels Convention which determines where in the EU divorce proceedings can be heard in any particular case. If the couple concerned are living in an EU country, then in order for them to be able to raise divorce proceedings in the UK, both of them would need to be domiciled in the UK. It would not be sufficient for just one of the parties to have a UK domicile.
So, if we have a situation where a Scot is married to an Italian, with the parties living in Spain, the Scottish courts would not be able to deal with divorce proceedings. However, in the common scenario where a Scottish husband and wife are living in Spain, then the Scottish courts can deal with their divorce.
Matters are somewhat easier where we find ourselves dealing with a country outwith the EU. In those circumstances, only one of the spouses needs to be domiciled in the UK in order to be able to raise proceedings here. Thus, if you have a situation where a Scot is married to an Australian and the parties live in Dubai, then Scottish courts may have a role to play.
Of course, there is much to think about in deciding where to get divorced. Many factors can impact on the decision, including: whether there are children, where most of the parties' assets are situated and crucially, what the legal system in the place they happen to be living will mean for them. One of the first tasks is often to get advice from family lawyers in the different countries where the divorce might be dealt with, so that an assessment can be made about which legal system best serves the individual's needs.
And finally, speed is often of the essence! We are often faced with a "first past the post" situation, where the country in which the proceedings are raised first is the place in which the divorce will end up being heard .