This is very different from English law where it is usually still possible to make financial claims after a decree absolute, if a separate court order has not been made dismissing those claims. Such post-divorce financial claims are usually not possible in Scotland.
You wouldn’t think something this important could happen without you even knowing about it. But it’s not completely out of the question.
The risks are higher if you have more than one address – for example, you may work abroad but still have a UK address, or you might go on several extended overseas business trips each year. Even in today’s digital age, you will be formally notified of divorce proceedings in Scotland by getting a copy of the court papers through the post. If you don’t respond within a given time limit, the court may assume you have no objection, and divorce may be granted without your further involvement.
Your ex might not necessarily be trying to pull a fast one. Every now and again there are problems with this system, normally down to simple human error. You might already find that your post is delayed or lost if it’s being forwarded between addresses or countries. That doesn’t really matter if all you get through the door is charity appeals and money-off vouchers for pizza, but divorce papers are a different matter! Sometimes a small mistake in the papers means they are delivered to the wrong address entirely. If someone at the other address unwittingly signs for them, the court doesn’t enquire further and may assume that you’ve got the papers but just don’t want to be involved.
So what can you do if the first you know of your divorce is when the court order drops through the letterbox? It depends on the circumstances, but if you genuinely didn’t know about it (or even if you did, but there was some genuinely exceptional reason why you didn’t respond in time) you can sometimes ask the court to set aside the divorce. That isn’t a minor matter. In Scotland, that requires a separate court action, so you need legal advice before you start. You’ll need to show the court that the divorce has resulted in a significant disadvantage to you, such as the loss of a chance to make a large financial claim against your ex. Just being annoyed about it, while understandable, will not be enough for the court to intervene.
Bear in mind, too, that if the court cancels the divorce you and your ex will still be married in the eyes of the law. If one of you has remarried, this poses an obvious problem. For this reason, the court may be reluctant to do what you ask. However, raising the action may be enough in itself to persuade your ex to reach a financial settlement if that is the issue.
Prevention is always the best remedy. If you think your ex might be intending to divorce you, make sure that anyone handling your post on your behalf (like a friend or neighbour) is alert to the possibility of court papers being delivered, and knows what to do with them. You may even want to tell them not to sign for any postal deliveries, unless you’re certain they won’t be from the court. It’s also worth consulting a lawyer local to your UK address, as it may be possible to take steps with the court to give you additional warning of an action against you. Ultimately, if there are problems in your marriage, being proactive in addressing the financial and legal aspects of separation could end up saving you a lot more money in the long run.
Dianne Millen is a senior family law solicitor with Morton Fraser LLP, a firm with expertise in advising on international divorce and litigating in both England/Wales and Scotland.