The recent Court of Session decision of Lady Tait in JMS v HMS ([2025] CSOH 80) provides a useful examination of how Scottish courts respond when faced with competing divorce proceedings raised both north and south of the border.
The Facts
The parties met and began their relationship whilst living in London. They cohabited in a property owned by the husband in London from September 2019, before moving to another London property owned by him in November 2020. They were married in London in June 2021. As well as owning two properties in London and a house in Mustique, the husband was a partner in a family estate in Scotland. He owned a cottage located on the estate and had an interest in the main estate house. The wife owned a flat in London. Throughout their marriage the parties spent time in Scotland, London and Mustique.
The parties separated on 26 September 2024 (whilst staying in Scotland). The wife returned to London and the parties reconciled there on 30 October.
The parties entered into a surrogacy arrangement and their daughter was born in Ukraine on 9 December 2024. They travelled together to Ukraine and returned to London on 4 March 2025.
The parties separated on 27 March 2025, when the husband told the wife he wanted a divorce. He immediately raised an action in the Court of Session in Edinburgh on 28 March 2025 (suggesting that he was live to the risk of competing jurisdictions). The wife raised proceedings in the Central Family Court in London on 7 April 2025.
The wife’s position was that the parties were residing together in London when the Scottish action was raised, and that she had been habitually resident in London for the preceding 12 months. She sought a sist in Scottish proceedings i.e.an order that the proceedings were frozen, on the basis of her having raised proceedings in respect of the same matter in England.
The husband contended that the parties had separated on 26 September 2024, whilst in Scotland, which failing the last time they lived in the same place was in Scotland on 9 December 2024, prior to their travel to Ukraine.
Lady Tait was asked to determine whether or not the Scottish action ought to be frozen to allow the matters arising from the parties’ separation and divorce to be litigated in England.
The Law
Schedule 3 paragraph 8 of the Domicile and Matrimonial Proceedings Act 1973 provides:
“Where before the beginning of the proof in any action for divorce which is continuing in the Court of Session…it appears to the Court concerned on the application of a party to the marriage—
(a) that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and
(b) that the parties to the marriage have resided together after the marriage was contracted; and
(c) that the place where they resided together when the action in the Court was begun or, if they did not then reside together, where they last resided together before the date on which that action was begun is in that jurisdiction; and
(d) that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which that action was begun;
it shall be the duty of the Court…to sist the action before it.”
The decision
The onus of proof was on the wife, as she sought the sist. She required to demonstrate (i) that the parties last resided together in England, and (ii) that either of them was habitually resident in England throughout the year ending with the date on which they last resided together before 28 March 2025. If the grounds for a mandatory sist were not established, the court had to determine whether it would nevertheless be appropriate for the English proceedings to be disposed of first on the balance of fairness and convenience.
Lady Tait held that in the context of divorce proceedings, “resided together” in Sch.3 para.8(c) of the 1973 Act required more than physical presence within the same property. It required examination of the nature of the parties’ living arrangements as husband and wife.
She found that despite some difficulties in their marriage, the parties resided together throughout their marriage except for a period from 27 September to 30 October 2024. The parties resumed living together as husband and wife from the end of October 2024 until 27 March 2025 despite their difficulties and the period in Ukraine. She held that they last resided together in London on 27 March 2025.
She also found that the defender had established her habitual residence in London, the test being where someone had “established, on a fixed basis, his permanent or habitual centre of interest with all the relevant factors being taken into account for the purposes of determining such residence”. She took into account factors such as the wife owning property in London, establishing her business there, administrative connections, friendships and arrangements in London for the parties’ daughter.
Accordingly, the wife was successful in obtaining a mandatory order to freeze her case, and the issues would be determined by the English courts.
Comment
This family’s circumstances meant they had homes in a number of jurisdictions, adding complexity to determining the matters arising from their separation. As Lady Tait observed, a case determining issues such as habitual residence and when and where a couple last resided together turns on its own set of facts and circumstances. With very different regimes of financial provision in Scotland and England & Wales, which jurisdiction is entitled to make these decisions can have wide reaching implications for divorcing couples. This decision underlines the need to take early advice if there are jurisdictional complexities in any separation. Please contact our expert family lawyers for further advice and assistance.
Contributor
Senior Associate
