The recently published opinion of Lady Tait in NS v PSC [2026] CSOH 93 explores themes similar to those considered in her earlier decision in Adun v Adun [2026] CSOH 33. In both cases, the court had to decide whether to grant a discretionary sist of Scottish proceedings because proceedings were underway in another jurisdiction - in other words, whether the Scottish action should be put on hold.
A sist may be granted under paragraph 9 of schedule 3 to the Domicile and Matrimonial Proceedings Act 1973 or at common law on the basis of forum non conveniens. The court applies the same broad approach to either argument. Identifying the more appropriate court requires consideration of a range of factors. These may include which country has the closest connection with the marriage; where the matrimonial assets are situated (which may matter for valuation and enforcement); where witnesses are located; and whether the parties are likely to receive fair treatment, or “substantial justice”, in each jurisdiction. The fact that the competing jurisdiction may produce a very different outcome is relevant, but is not in itself decisive.
In NS v PSC, proceedings had been raised in both Scotland, where the pursuer sought divorce, and California, where the defender sought legal separation. The parties had married in the US and their three children were born there. The defender is a dual UK and US citizen, whilst the pursuer is a German national who lives and works in Scotland. The family lived in California throughout the marriage until relocating to Scotland in 2024, before separating a little shy of five months later. Following contested proceedings, the defender and the children returned to California in May 2026.
The defender appeared as a party litigant in the Scottish proceedings, while the pursuer was represented by a specialist legal team. For the pursuer, it was submitted that California did not yet have jurisdiction to entertain divorce proceedings and would not do so until 27 November 2026. The Californian legal separation proceedings could not produce a final judgment without both parties’ consent, which would not be given. If those proceedings were amended to seek divorce, it was said that they were unlikely to conclude before 2028 or 2029. The pursuer also relied on concerns about financial transparency and access to funds, the parties’ continuing financial links, the delay in bringing matters to a conclusion and the expense already incurred in the Scottish action.
Interestingly, in both NS v PSC and Adun v Adun, there was some uncertainty about whether the overseas proceedings would continue to a conclusion. Lady Tait acknowledged that possibility, but observed that any sist of the Scottish action could be recalled if necessary. In both cases, expert evidence was led on how the law would operate in the overseas jurisdiction. In NS v PSC, it was clear that Scotland and California were likely to produce very different financial outcomes. That difference, however, could not determine the issue on its own.
Lady Tait refused the motion to sist. Although California had the stronger overall connection with the marriage and family, the Scottish action was already at an advanced stage. Significant financial disclosure had already taken place and substantial expense had been incurred. Against that background, the likely delay, duplication and additional cost of awaiting the Californian proceedings meant that California was not clearly the more appropriate forum. The practical lesson here is stark: if a party intends to argue that proceedings should continue elsewhere, the point should be explored and raised at as early a stage as possible.
It is also worth remembering that courts in other jurisdictions may not approach these questions in the same way. In some countries, once a court is seised of jurisdiction, proceedings may continue even where another forum appears more appropriate. That can create a race to progress one action ahead of the other. For clients, the practical consequences may include duplicated legal costs and the pressure of managing litigation in two jurisdictions at the same time. Early advice and a coordinated cross-border strategy are therefore essential
Contributor
Partner
