Insights
27 Mar 24
How to deal with a UK pension after an overseas divorce
Fiona Turner and Emma Collins
Different laws and processes apply to divorce and civil partnership dissolution in the legal jurisdictions of England and Wales, and Scotland.
Since the Supreme Court decision of Villiers, considerable attention has been given to the differing legal jurisdictions in England and Wales, and in Scotland.
Different laws and processes apply in each jurisdiction, and below we highlight some of the main differences for divorce and civil partnership dissolution.
Grounds for divorce/dissolution
In both jurisdictions, there is only one ground of divorce/dissolution and that is that the marriage has broken down irretrievably.
However, irretrievable breakdown has to be established by a particular set of circumstances, which differ depending on whether the proceedings are issued in England/Wales or Scotland.
Since 6 April 2022, England and Wales have operated a ‘no fault divorce’ system, taking away the requirement to cite a reason or ‘fact’ for the marriage or civil partnership breakdown.
| England/Wales | Scotland | |
|---|---|---|
| Adultery | No | Yes |
| Behaviour | No | Yes |
| Desertion | No | No |
| 1 year's separation | No | Yes – with consent |
| 2 years' separation | No | Yes – no consent required |
| 5 years' separation | No | N/A |
| No fault | Yes | N/A |
Scotland has had a no fault basis for divorce for many years since the Divorce (Scotland) Act 1976 was introduced although fault is always a requirement if the parties have been separated for less than 1 year, and sometimes required to be cited even if they have been separated for up to 2 years if the parties do not agree to divorce.
Jurisdiction for divorce/dissolution
To bring proceedings, it is necessary to establish jurisdiction. This tends to be based on concepts of habitual residence or domicile.
In summary, the grounds between being able to issue in each jurisdiction are as follows:
| England/Wales | Scotland | |
|---|---|---|
| The applicant and the respondent are habitually resident in that jurisdiction | Yes | Yes – Note that the petitioner and respondent are referred to as the pursuer and defender in Scotland) |
| The applicant and respondent were last habitually resident in that jurisdiction and the (applicant *) (or) (the respondent*) still resides there (*specify as appropriate) | Yes | Yes |
| The respondent is habitually resident in that jurisdiction | Yes | Yes |
| The applicant is habitually resident in that jurisdiction and has resided there for at least a year immediately prior to the presentation of the divorce application. | Yes | Yes - Note that in the Sheriff Court a period of residence of 40 days in the specific jurisdiction of the Sheriff Court immediately preceding the raising of the writ (petition) is required. |
| The applicant is domiciled and habitually resident in that jurisdiction and has resided there for at least six months immediately prior to the presentation of the divorce application. | Yes | Yes |
| (Only in the case of a marriage) the applicant and respondent are both domiciled in that jurisdiction | Yes | Yes |
| Or: if none of the above apply: No court of a EU member state has jurisdiction under the Council Regulation and either the applicant or respondent is domiciled in the jurisdiction on the date when this application is issued |
Yes | Yes |
Divorce/dissolution procedure
The process for obtaining a divorce or dissolution is the same.
England and Wales
More information about the mechanics of the process can be found on our divorce, dissolution and separation page.
A major change to the process since the introduction of the new law in April 2022 is that an application for divorce or dissolution can be brought by both parties together (a joint application) if they so choose.
Scotland
In Scotland, there are two different processes by which a divorce/dissolution can be obtained. The procedure that a couple will take will be dependent on individual circumstances, and if there are children involved.
The two types of procedure are:
- A Simplified or “Do It Yourself divorce”; or
- Non-Simplified/Ordinary procedure
Simplified divorce procedure
If there are no children under 16 and financial matters have already been resolved by agreement, an application can be made for a simplified divorce. It is the most cost-effective way of ending a marriage if circumstances allow for it.
This type of divorce is only based on either one year of separation with the consent of both parties, or two years’ separation (without consent). This method is essentially a paper exercise and does not involve either party attending the court.
It generally takes no more than two to three months in contrast to those which are contested, which can often take a year or more.
Ordinary procedure
If there are still financial matters in dispute or issues in respect of children to be resolved a normal divorce action is required.
The process of applying for a divorce in Scotland is by way of an initial writ being lodged at court.
Where should the divorce or dissolution take place?
It might be that there is more than one possible jurisdiction for a divorce. Urgent advice must be taken, as timing could be critical for a petition to be filed in one jurisdiction, rather than another.
In some jurisdictions, the first in time rule will apply; in others, it might be that the matter is decided on a basis of what is most convenient (forum conveniens).
In many jurisdictions, the financial remedies on divorce will be linked to where the divorce takes place. The outcome for a financial settlement might be very different in one jurisdiction, rather than another.
There are key differences between how a court will resolve financial issues, depending on whether proceedings are brought in England/Wales or Scotland. A separate article deals with those issues.
We can provide specialised advice in both England/Wales and Scotland, and assist in any cross border family cases which span both jurisdictions.
For any further information or to discuss the above in more detail, please do not hesitate to contact our divorce solicitors.
For advice on any Scottish family law issues, contact our family lawyers in Scotland.
