Rachael Kelsey

The decision dealt with whether it should be the Scottish or English courts divorcing the couple – and consequently, whether the financial provision regime to be applied would be Scots or English law.

Why is the case important?

Because the financial outcomes in English vs Scottish divorces are often very different. It’s a generalisation, but English law tends to favour the economically weaker party.

Because of the changes to divorce jurisdiction within the UK post Brexit there is much greater scope now than previously for there to be competent, concurrent proceedings brought in both Scotland and England and Wales.

To slightly oversimplify, in most cases where there is a dispute intra-UK, you will end up being divorced by the courts in the place where you last ‘resided together’. This judgment gives guidance on the material issues in those cases, including the definitions of ‘habitually resident’ and ‘residing together’- which issues are also often very significant in other family law cases too.

What are the legal issues?

Allocation of jurisdiction intra-UK is dealt with by Schedule 3 of the Domicile and Matrimonial Proceedings Act 1973. There is mirror provision for Scotland and England and Wales (Schedule 1), and the Schedules provide for two situations- the first is where the court is required to grant a “mandatory “sist (or stay, In England and Wales) of the action, to allow the divorce in the other jurisdiction to proceed to conclusion. In the second situation, where the mandatory criteria are not met, the court retains the power to sist, if the balance of convenience favours the divorce in the other jurisdiction being disposed of first- a “discretionary” sist/stay.

The relevant parts of the test for a mandatory sist that the court had to consider in this matter were where did the couple last “reside together” and whether the wife had been “habitually resident” in England for 12 months before they ceased residing together, if the court found that that had been in England.

Factual matrix:

The husband raised divorce proceedings in the Court of Session, on 28 March 2025. The wife then raised in the Central Family Court in London, on 7 April 2025. The husband contended that the couple last resided together on 26 September 2024 when they were in Scotland, with an esto position for 9 December 2024, which would also have involved the place where they were together being in Scotland. The wife’s position was that the couple last resided together in London, on 27 March 2025, and that she had been habitually resident in England and Wales for the preceding year.

The couple lived between Scotland and England and the court had to consider detailed evidence about the parties living arrangements in recent years to be able to determine if the wife had been habitually resident in England and Wales, notwithstanding that she had spent significant time in Scotland.

The wife’s position was that the parties’ circumstances were such that this was a mandatory sist case- but she also had an esto position, seeking a discretionary sist contending that the balance of fairness favoured the divorce being dealt with in England.

The Court accepted all three of the wife’s contentions- holding that the parties last resided together on 27 March 2025, in London, and that she had been habitually resident there for the preceding 12 months.

What should you be aware of?

This case again underlines that you need to be getting detailed information from clients at the outset about their (and their spouse’s) domicile and their residence position. If there is a potential English dimension, get advice early about the differences in substantive outcomes that your client might expect in the two jurisdictions- and where you would better argue the sist/stay, and the different approaches taken by the two courts to privacy and anonymisation.

Rachael Kelsey is one of the founding partners of SKO Family Law Specialists. SKO Associate, Seonaid Cochrane was lead agent, with counsel, Katharine Muir, for the successful wife/defender.