Outer House refuses to sist Scottish divorce action in favour of Californian proceedings

About this case:

• Citation:
  [2026] CSOH 93
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Tait

Lady Tait accepted that the marriage and family had a greater overall connection with California than Scotland, but held that the advanced stage of the Court of Session proceedings, together with the likely delay, duplication and additional expense of awaiting the Californian process, meant that California was not clearly the more appropriate forum.

NS and PSC married in Las Vegas in January 2006 and separated in December 2024. They have three children, aged 13, 11 and eight, all of whom were born in the United States and hold American citizenship. The defender is a dual UK and US citizen who returned to live in California in May 2026. The pursuer is a German national who lives and works as a medical consultant in Scotland. The family had lived in California until relocating to Scotland during 2024, but following contested proceedings the defender and the children returned to California in May 2026.

The case was heard by Lady Tait, with Clark KC, instructed by SKO Family Law Specialists, appearing for the pursuer. The defender appeared as a party litigant.

Competing matrimonial proceedings

The pursuer had previously raised a divorce action in the Court of Session in August 2025, which was dismissed on her motion after the defender disputed the jurisdictional basis relied upon. She subsequently raised the present proceedings, which were served on the defender in November 2025. A four-day proof was fixed in March 2026 to begin on 13 October 2026.

The defender had himself raised divorce proceedings in California in June 2025 but dismissed them in October of that year. He then commenced new proceedings in the Superior Court of California, El Dorado County, in July 2026. Those proceedings sought legal separation rather than divorce, because at that stage he had not yet met the Californian residence requirement for divorce. His stated intention was to amend them to divorce proceedings after 27 November 2026.

He sought a discretionary sist of the Scottish action under the Domicile and Matrimonial Proceedings Act 1973 or, alternatively, on the basis of forum non conveniens. Under paragraph 9 of schedule 3 to the 1973 Act, the court may sist a Scottish matrimonial action where proceedings concerning the marriage are continuing elsewhere and the balance of fairness, including convenience, makes it appropriate for those proceedings to be disposed of first.

Lady Tait noted that the same general approach applied as in common law forum non conveniens cases: the party seeking the sist had to show that another available forum was clearly more appropriate for determination of the dispute.

Strong Californian connection

The defender submitted that California was clearly the more appropriate forum. The parties had spent almost all of their marriage there, their three children had been born and now lived there, and much of the matrimonial property was situated or administered in California. He also relied on the practical difficulties of litigating in Scotland while living in California, caring for three children and representing himself. He maintained that records concerning Californian property, bank accounts, a company and a trust were held there and could be dealt with more directly by the Californian courts.

The defender acknowledged that the Californian action presently sought only legal separation and that such a judgment required the consent of both parties, which the pursuer did not intend to give. His position, however, was that the existing proceedings provided a procedural route to divorce once he satisfied the residence requirements. If the Californian proceedings proved unavailable, he argued, the Scottish sist could simply be recalled.

He further submitted that differences between Scottish and Californian financial provision were relevant to the overall circumstances, although he did not ask the court to infer dishonesty or bad faith on the pursuer’s part merely because the two systems could produce different outcomes.

Delay and expense

For the pursuer it was submitted that the Scottish proceedings were already at an advanced stage and that a proof was due to begin within weeks. By contrast, the defender could not presently pursue divorce in California and would not meet the residence requirement until 27 November 2026. The pursuer intended to seek dismissal of the legal separation proceedings, which could not result in a judgment without her consent. It was submitted that defended Californian divorce proceedings might not conclude until 2028 or later, whereas the Scottish proceedings were positioned for determination in 2026.

The pursuer also relied on the substantial expense she had already incurred in Scotland and the duplication which would result if she had to begin litigating the financial issues in California. She advanced allegations concerning the defender’s management of matrimonial assets and income, including alleged failure to account for funds and possible dissipation of assets. Lady Tait stressed that these remained allegations which the court could not determine at the sist hearing, although the claimed urgency could properly be taken into account.

Scottish proceedings to continue

Lady Tait accepted that the Californian legal separation proceedings qualified as “other proceedings in respect of the marriage” for the purposes of the 1973 Act. She also accepted that the family’s overall connection with California was stronger than its connection with Scotland. The parties had lived there for most of their marriage, the children had been born there and now resided there, and two heritable properties were located in California. None of the heritable property was in Scotland. However, the judge held that those factors were outweighed by the stage which the Scottish proceedings had already reached.

She said: “Notwithstanding the greater overall connection to California, the very late stage at which it is sought to sist this action, if granted, would result in considerable unfairness and potential prejudice to the pursuer.” The pursuer would lose the “timely and expected determination” of her divorce and financial claims, with proof already fixed for October 2026. By contrast, divorce proceedings in California could not progress until at least the end of November and defended proceedings could extend into 2027 or 2028.

A sist would therefore cause delay, duplicate work already undertaken and generate substantial further expense for both parties. Lady Tait also rejected the suggestion that the location of the assets made Scotland an impractical forum. Although much of the property was outside Scotland, two significant heritable assets were in London and Brighton and would equally be foreign assets from the perspective of a Californian court. “Determination in respect of foreign assets is not uncommon for this court”, she observed.

The defender, being based in the United States, would also be able to assist with disclosure of Californian documents in the Scottish proceedings. Lady Tait concluded: “Accordingly, while the greater connection of the marriage is with the US, the balance of fairness (including convenience) at the very late and advanced stage in these proceedings is such that it is not appropriate to await disposal of nascent and uncertain Californian proceedings before further steps are taken in this action.”

The defender’s motion for a sist was therefore refused, with the question of expenses reserved.