Married In Scotland / Divorced In NZ.....

[Fiona C Davidson]

Hello - I'm new to this posting thing, but I have a question to ask. If a person married in Scotland, then emigrated to NZ to live, and decided to remarry, would they get divorced under Scottish law or NZ? My feeling is that Scottish law would apply. Any assistance much apprciated here!

[DavidWW]

Hello - I'm new to this posting thing, but I have a question to ask. If a person married in Scotland, then emigrated to NZ to live, and decided to remarry, would they get divorced under Scottish law or NZ? My feeling is that Scottish law would apply. Any assistance much appreciated here!

That will depend where the spouse was, - if back in Scotland, - then, as far as I'm aware, the divorce action would have to place place there.

David

[AnneM]

Hi Fiona

It depends to some extent when the divorce took place as the rules governing jurisdiction have changed. If you can give me a rough date I'll look up my books and try to come up with an answer.

Anne

[Fiona C Davidson]

Hi David and Anne

Thanks so much for your responses. The divorce occurred in 1921 I believe.

Anne - I just love your stories! I have often logged on to see if you have written a new chapter. Thank you for them.

David - thanks to you for telling us about Talking Scots when you were in NZ last year.

I have not quite figured out posting and so on yet so I hope this response goes where it's supposed to!!

Fiona

[AnneM]

Thanks Fiona

Final episode coming up soon but work and concerts have got in the way. It's still in MS and not quite finished.

I'll hie me to my books to look up the relevant law for the time if I can find it. There are 2 questions there rather than one, firstly in which jurisidiction could the parties divorce and secondly which law could cover any consequences in relation to property etc. The answer to the first is not necessarily the same as the answer to the second which complicates matters but if you leave it with me I'll see what I can come up with.

Anne

[AnneM]

Hi again Fiona

Harder to find that I had hoped. To get a full answer may have to get David to get me a book out of the law library if I can persuade him so to do. The basic rule at that stage seems to have been that the Court of Session in Scotland had jurisdiction if the husband was domiciled in Scotland. That means if he was living in Scotland and considered himself fixed there or was living elsewhere but retained his intention to return and his identity as a Scotsman. Of course the rules in NZ could have allowed jurisdiction on the grounds of residence (in fact that might have been sensible in a country where so many were new residents) but I don't know that. In those circs it might depend on who raised the action first where.

Will investigate further. As in so many things legal no straightforward answer.

Anne

[AnneM]

Fiona

Do you know whether it was one or both spouses who emigrated? As I said the jurisdiction of the Scottish Court would depend on the husband being of Scots domicile. If they both emigrated permanently to NZ then they probably got divorced there under their law. NZ had its own legislature from 1907. If the husband emigrated and left the wife she might have a problem.

At that stage where property rights are concerned if the parties were divorced under Scots Law, the innocent party became entitled to the share of the spouse's estate he or, more commonly, she would have got if the spouse had died. Which rules of succession applied would depend on where the spouse was domiciled or possibly, if land or related to land, where the property was situated.

It is always possible that if only one party emigrated and got remarried in NZ he or she just 'forgot' the previous marriage!

Anne

[Fiona C Davidson]

Hi Anne

Thanks for the three posts in response. It's interesting what you wrote back. The husband was the party that emigrated to NZ. Don't know anything about the circumstances resulting in the divorce.

Re the stories, well it's great that another one is on the way!

Many thanks for your time.

Fiona

PS I think I have just worked out how to stick these little faces on my message

[DavidWW]

Hi again Fiona

Harder to find that I had hoped. To get a full answer may have to get David to get me a book out of the law library if I can persuade him so to do. The basic rule at that stage seems to have been that the Court of Session in Scotland had jurisdiction if the husband was domiciled in Scotland. That means if he was living in Scotland and considered himself fixed there or was living elsewhere but retained his intention to return and his identity as a Scotsman. Of course the rules in NZ could have allowed jurisdiction on the grounds of residence (in fact that might have been sensible in a country where so many were new residents) but I don't know that. In those circs it might depend on who raised the action first where.

Will investigate further. As in so many things legal no straightforward answer.

Anne

Anne

Could I suggest that few words on the little understood concept of domicile would not go amiss.................

David

[AnneM]

Will do but need to gather my thoughts to do it properly because although I understand it and use it without thinking it takes a bit of thought to explain it clearly.

Anne