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3 years on 
Impact of Brexit on divorce

Yesterday (31st January 2023) marked the 3-year anniversary of the United Kingdom’s withdrawal from the European Union.  How has the law relating to divorce been impacted?

When the UK was a member of the European Union there were clear rules governing the jurisdiction of the member states regarding divorce.  The UK as a whole was one member state therefore the jurisdiction of the UK was be governed by those rules and only when the UK had jurisdiction would it then fall to determine which part of the UK would hear the case.  Now the rules are different.

Scotland and England have different rules to be applied when determining if you can raise a divorce action in that country.

In Scotland either you or your spouse must:

  • Be domiciled in Scotland or

  • Be habitually resident in Scotland for a period of one year prior to the date the action is raised.

Accordingly, if you are a citizen of a member state of the EU but have been living in Scotland for a year and you consider it to be your permanent place of residence then you can apply for a divorce in a Sheriff Court in Scotland.

However, if both you and your spouse got married in Scotland but then moved abroad to live as a married couple and following separation neither of you return to live in Scotland and you are not domiciled here then you cannot seek divorce here.

One other issue you will need to consider if you wish to apply for a divorce in Scotland but you or your spouse reside in another country is recognition of your divorce decree abroad.

Some countries do not automatically recognise a decree of divorce obtained in Scotland.  Only 12 EU member states will automatically recognise a divorce decree granted by a Scottish court (Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden).  Other EU member states have their own national rules, and you will need to consult a lawyer in that country for advice.

Scotland will recognise a foreign decree of divorce if it has been granted in proceedings which make it effective under the law in the country in which it was granted and one of the spouses was domiciled or habitually resident in that country at the date the action was raised.

If you are considering getting divorced in Scotland and have concerns about whether that is possible and if the decree will be recognised abroad you should seek legal advice at the earliest opportunity.

As always, the purpose of this blog is to provide an overview of the options available in Scotland and should not be relied upon as legal advice.  You should always obtain specialist legal advice about your own circumstances.  Please call 0131 5818 652 or email to arrange an appointment. 

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