united-kingdom international divorce england-and-wales scotland
Is agreeing in a pre nup to get divorced in Scotland legally binding?
<p>Unfortunately one or both of you decide to divorce and you had agreed on a pre nup that you would get divorced in Scotland because you feel it handles divorce more fairly.</p>

<p>At least one of you is English but neither of you are Scottish.</p>

<p>Probably not. </p>

<p>Many countries (or subordinate units like states in federal countries that vest divorce law in subordinate units), including Scotland (as set forth in the <a href="http://www.legislation.gov.uk/ukpga/1973/45" rel="nofollow noreferrer">Domicile and Matrimonial Proceedings Act 1973</a>) have a residency qualifications that must be met for the courts of that jurisdiction to have jurisdiction over a divorce case. In Scotland, generally speaking, at least one party must either be domiciled in Scotland or must have been a "habitual resident" of Scotland for at least a year.</p>

<p>In Europe, international jurisdiction over divorce cases is governed by the <a href="https://en.wikipedia.org/wiki/Brussels_II" rel="nofollow noreferrer">Brussels II</a> regulation enacted in 2003 (text <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R2201:EN:HTML" rel="nofollow noreferrer">here</a>), and different bodies of law allocate jurisdiction between different divorce regimes within federal states like the U.K. as explained <a href="http://www.brodies.com/blog/what-are-the-rules-of-jurisdiction-for-family-cases-in-scotland/" rel="nofollow noreferrer">here</a>. The basic rule of Brussels II for divorces is set forth in Article 3 which states:</p>

<blockquote>
  <ol>
  <li>In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State</li>
  </ol>
  
  <p>(a) in whose territory:</p>
  
  <ul>
  <li><p>the spouses are habitually resident, or</p></li>
  <li><p>the spouses were last habitually resident, insofar as one of them still resides there, or</p></li>
  <li><p>the respondent is habitually resident, or</p></li>
  <li><p>in the event of a joint application, either of the spouses is habitually resident, or</p></li>
  <li><p>the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or</p></li>
  <li><p>the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is
  either a national of the Member State in question or, in the case of
  the United Kingdom and Ireland, has his or her "domicile" there;</p></li>
  </ul>
  
  <p>(b) of the nationality of both spouses or, in the case of the United
  Kingdom and Ireland, of the "domicile" of both spouses.</p>
  
  <ol start="2">
  <li>For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and
  Ireland.</li>
  </ol>
</blockquote>

<p>A handful of countries do not and in the days when a divorce was hard to get in the absence of proof of fault, there was a huge amount of litigation over whether a couple could either unilaterally, or by mutual agreement, dissolve their marriage in a place that had loose jurisdictional requirements for obtaining a divorce. But, Scotland and other countries whose law follows the European Union rules are not such jurisdictions. (Historically, Mexico had more liberal divorce rules and weaker residency requirements and was on such jurisdiction although I do not know if that remains the case today.)</p>

<p>Also, while it is often possible for parties by control to choose a governing law and venue for disputes between them, generally speaking, the parties must have some meaningful connection to the venue for that principle to apply. The only way I can see that some court, somewhere might find a connection to jurisdiction when neither party has ever lived there would be if the wedding took place in there, but Scotland does not recognize this exception.</p>

<p><strong>The Impact Of Children On The Question</strong></p>

<p>Furthermore, if there were children involved in a divorce, there are international treaties that govern jurisdiction over child custody matters which generally require proceedings to be brought in the jurisdiction that is the child's "habitual residence" and a place where a child has never lived would almost certainly not qualify. The <a href="http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/oct99cro.html" rel="nofollow noreferrer">most notable of these treaties</a> is the Hague Convention on the Civil Aspects of International Child Abduction, a treaty with approximately 45 member countries.</p>

<blockquote>
  <p>The Hague Convention encompasses nearly all European countries,
  including some of the former Soviet and Yugoslav republics, and other
  westernized countries around the world. Members also include a very
  few countries in Africa, South America, and the pro-western margins of
  the Middle East.</p>
</blockquote>

<p>In general, rights and responsibilities related to children, who cannot be parties to any binding agreement, may not be set forth in a marital agreement.</p>

<p>So, even if a Scottish court was willing to entertain the termination of marriage, property division, name change, and maintenance part of the divorce, and other jurisdictions chose to recognize the Scottish court's ruling, this would not give the Scottish court authority to issue orders related to children.</p>
