SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
Contesting Jurisdiction A party to divorce proceedings can contest jurisdiction, and priority is given to the jurisdic - tion within the British Isles in which the parties to the marriage or civil partnership last resided together. Provided that one of the parties to the marriage was habitually resident in the relevant jurisdiction throughout the year prior to when the couple ceased to reside together, proceed - ings raised elsewhere in the British Isles must be sisted (halted) regardless of where proceedings were first raised. Otherwise, a party can seek to sist (halt) pro - ceedings in Scotland if they can demonstrate that proceedings are already ongoing before another court of competent jurisdiction, and that that court is a more appropriate forum for the case to be heard in all of the circumstances of the case. This is known as a discretionary sist and consideration shall be given to the general forum non conveniens factors, including where the parties’ assets are located, where they are now living, and how far proceedings have pro - gressed. Stay of Proceedings Relating to Foreign Jurisdiction See “Contesting Jurisdiction”. 2. Financial Proceedings 2.1 Choice of Jurisdiction Grounds for Jurisdiction for Commencing Financial Proceedings Jurisdiction for divorce is regulated by the Domi - cile and Matrimonial Proceedings Act 1973. The Scottish courts have jurisdiction if either of the parties has been habitually resident in Scotland throughout the year before the action is raised or if either of the parties is domiciled in Scotland.
Contesting Jurisdiction A party to financial proceedings can contest jurisdiction. Stay of Proceedings Within the British Isles (eg, England or Jersey), the Domicile and Matrimonial Proceedings Act 1973 affords priority to the jurisdiction where the parties last resided together. Where at least one party was habitually resident in that jurisdiction for the year before the parties last lived togeth - er, if proceedings are raised in that jurisdiction, proceedings raised in any other part of the Brit - ish Isles must be sisted (stayed), regardless of where proceedings were first raised. In other cases, the Scottish courts have discre - tion to sist based on the common law doctrine of forum non conveniens. The party seeking the sist must show that there are proceedings ongo - ing in another competent jurisdiction, and that it would be in the interests of justice for the case to be heard there. Financial Claims After a Foreign Divorce A foreign divorce will generally be recognised in Scotland if it was obtained by means of pro - ceedings and one of the parties was a national of, habitually resident in, or domiciled in the country in which the divorce was obtained, and the divorce is effective in that country. Where an overseas divorce is obtained other - wise than by means of proceedings (eg, without the involvement of a court), it will be recognised only if both parties are domiciled in the country in which the divorce was obtained. If either party was habitually resident in the UK throughout the year before such a divorce was obtained, it will not be recognised.
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