SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
ties are married in a civil or religious or belief ceremony. Processes in Relation to Ending a Marriage In Scotland, nullity proceedings can be brought, in which case the marriage may be found to be void or voidable. A void marriage is one that was not legally valid because the parties were closely related, one or both parties were under the age of 18 (or under the age of 16 if the marriage took place prior to 27 February 2023), or if either party was already married or in a civil partnership. If the marriage was not legally valid, it is treated as never having existed. Alternatively, it is possible to annul a marriage for various reasons, such as where a party has not consented to the marriage or was incurably impotent. In such circumstances, the marriage legally exists until it is successfully annulled, and such parties acquire the same rights to finan - cial provision as they would have had had they divorced. Parties can be judicially separated in Scotland and the same grounds apply as for divorce. The parties can live apart albeit remain married, and all responsibilities and rights arising from the marriage shall continue. 1.2 Choice of Jurisdiction Jurisdictional Grounds to Commence Divorce Proceedings A Scottish court has jurisdiction if either party to the marriage is domiciled in Scotland or if either has been habitually resident in Scotland throughout the year immediately before the divorce action is raised. If proceedings are raised in a sheriff court, parties must additionally dem - onstrate that one of the parties has either been resident in the relevant sheriffdom for a period of at least 40 days prior to the proceedings being
raised, or was resident in the sheriffdom for a period of at least 40 days that ended not more than 40 days prior to the proceedings being raised, and has no known residence in Scotland on that date. Jurisdiction for divorce is regulated by the Domi - cile and Matrimonial Proceedings Act 1973. Same-Sex Spouses and/or Civil Partners The same rules apply to same-sex spouses and civil partners. However, notwithstanding the additional criterion for a sheriff court to have jurisdiction (as outlined in “Jurisdictional Grounds to Commence Divorce Proceedings”), Edinburgh Sheriff Court shall have jurisdiction to entertain proceedings for the divorce of par - ties in a same-sex marriage if the parties mar - ried each other in Scotland, where no court has, or is recognised as having, jurisdiction, and it appears to the court to be in the interests of jus - tice to assume jurisdiction in the case (a “juris - diction of last resort”). Concepts of Domicile, Residence and Nationality The concepts of domicile and nationality are relevant to determining jurisdiction for divorce in Scotland. While not defined in the Domicile and Matrimonial Proceedings Act 1973, the con - cepts are to be given their ordinary meaning. Domicile is a common law concept used by the courts to determine which legal system applies to an individual at a specific time. It can be con - sidered as an individual’s permanent home, or where they have the closest connection. Residence is where an individual lives.
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