1 Which law applies?

1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international conventions have to be respected with regard to certain countries?

England/Wales

The courts of England and Wales will always apply the lex fori in matters concerning divorce and its financial consequences if they have jurisdiction. See also 9. below on forum non conveniens.

Scotland

The applicable law, in the absence of a choice by the spouses, is the law of the place where the property is situated (the lex situs) in relation to immovable property and the law of the spouses' domicile in the case of movable property. If the spouses are domiciled in different countries and the question relating to their movable property arises in Scotland then the law of Scotland applies (the lex fori) (section 39 Family Law (Scotland) Act 2006).

1.2. Do the spouses have the option of choosing the applicable law? If so, by which principles is this choice governed (e.g. the laws to be chosen, formal requirements, retro-activity)?

England/Wales

No. The recent seminal case of Radmacher v. Granatino [2010] UKSC 42 confirmed that the lex fori is to be applied in any event. That said, the validity of the agreement and the outcome under the chosen law are presumably crucial factors to be considered under the overarching principle of fairness (see 2.1. and 2.2. below).

Scotland

The spouses can choose the applicable law. There are no restrictions or formal requirements (section 39(6)(b) Family Law (Scotland) Act 2006).