Habitual residence key to cross-border divorce battles

The Scottish courts recently issued the first reported decision in the UK on the central plank of the rules that allocate jurisdiction in divorce cases within the UK. The decision in JMS v HMS [2025] CSOH 80 was given by Lady Tait on 22 August 2025. It dealt with whether the Scottish or the English courts should be divorcing the couple, and consequently, whether the financial provision regime to be applied would be Scots or English law.

Given the significant differences between the financial provision awarded by these neighbours, the issue is of importance to couples who straddle the border.

Jurisdiction

The rules on jurisdiction are set out in the Domicile and Matrimonial Proceedings Act 1973 (DMPA) — sections 7 and 8 (for Scotland) and section 5 (for England & Wales).

The Court of Session in Scotland only has jurisdiction to entertain an action for divorce if one party to the marriage either:

1. is domiciled in Scotland on the date when the action is started; or

2. was habitually resident in Scotland for one year before the action is started.

There is an additional requirement in the Sheriff Court that either party must have been resident in the sheriffdom (that is, the Scottish judicial district) for a period of 40 days before the action is started.

In England and Wales, parties are able to apply for a divorce on either a joint or sole basis and there is a wider range of scenarios in which the family courts are able to entertain divorce proceedings.

As at the date of the divorce application, only one of the following requirements must be met:

• Both parties are habitually resident in England & Wales.

• Both parties to the marriage were last habitually resident in England & Wales and one of them continues to reside there.

• The respondent is habitually resident in England & Wales.

• In a joint divorce application only, either of the parties is habitually resident in England & Wales.

• The applicant is habitually resident in England & Wales but must have resided there for at least a year prior to the date of the application.

• The applicant is domiciled and habitually resident in England & Wales but they must have resided there for at least six months prior to the date of the application.

• One or both of the parties is domiciled in England & Wales.

• In the case of a joint divorce application, the parties can rely on one of them being habitually resident in England & Wales.

Given the family court in England & Wales are able to hear divorce applications in a broad range of scenarios, it is not uncommon for there to be an overlap where there are multiple jurisdictions able to hear the divorce.

For separating couples whose circumstances are such that both Scotland and England & Wales have jurisdiction, the rules setting out which jurisdiction should take precedence in competing intra-UK divorce actions are found in Schedule 1 (England & Wales) and Schedule 3 (Scotland) of the DMPA.

In short, regardless of which action was first raised, the courts of the jurisdiction in which the parties last resided together will take precedence for the divorce as long as one party has been habitually resident there for the preceding twelve months.

A mandatory sist (or stay in England & Wales) will be required in the other jurisdiction, to allow the divorce in the jurisdiction the parties last lived together to proceed to conclusion.

Where the mandatory criteria are not met, the court has discretion on whether to grant a sist (or stay), if the balance of fairness (including convenience) favours the divorce in the other jurisdiction being disposed of first.

Background facts

The husband raised divorce proceedings in the Court of Session in Scotland on 28 March 2025. The wife subsequently filed her divorce application in England on 31 March 2025.

The husband contended that the couple last resided together on 26 September 2024 when they were in Scotland, with an esto position of 9 December 2024, when they were also together 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 & Wales for the preceding year.

The wife sought a mandatory sist of the Scottish proceedings. She also had an esto position, in the event that the court concluded she had not been habitually resident in England & Wales for the preceding year, of seeking a discretionary sist contending that the balance of fairness favoured the divorce being dealt with in England.

The couple had throughout their relationship lived between Scotland and England, having multiple properties in both locations. They also spent large portions of the year abroad in another property owned by the husband.

The court had to consider detailed evidence about the parties’ living arrangements in recent years to be able to determine where they last “resided together” in terms of the DMPA and if the wife had been habitually resident in England & Wales for 12 months before they ceased residing together, notwithstanding that she had spent significant time in Scotland and abroad in that period.

Resided together

There were no prior reported decisions on what “resided together” means in terms of the DMPA.

Here, the court concluded that this needed to be more than mere residence or physical presence within the same property. An objective assessment of whether the nature of the living arrangements were as husband and wife was required.

In this case, the husband contended that the parties’ relationship had broken down following an argument to which the police were called on 26 September 2024. However, the court accepted that the relationship continued after this incident, albeit with a three-day separation post-argument.

The wife produced evidence that the husband had sent an email to their interior designers saying that the parties had reconciled after the incident, the wife sent a family Christmas card, the husband posted a Valentine’s message to the wife on Facebook, they attended a birthday party together, continued to have sexual relations, sent affectionate text messages and had a friend over for dinner in London among other things.

The Court held that the parties continued to reside together until 27 March 2025, being the date that the husband left for a holiday without the wife and immediately prior to the wife receiving the husband’s Scottish divorce summons.

This meant that the place they last resided together was London.

Habitual residence

The next question in terms of the wife’s motion for a mandatory sist was therefore whether either party was habitually resident in England & Wales for the preceding 12 months.

While a detailed analysis of the number of days in each country was carried out, the court concluded that quality was more important than quantity.

A person’s habitual residence is a factual question specific to the individual. It is a question of where the “real focus” of someone’s life has been (Munro v Munro [2007] EWHC 3315 (Fam)) and stability of the residence is important (AR v RN [2015] UKSC 35).

The court accepted that the wife’s life was centred in London, her friends were there, she sought out baby classes for the parties’ daughter and arranged medical checks there, her GP was in London, she had property in London and her business was there.

The property in England where the parties lived was rented out for short-term periods; however, the court decided that this did not detract from it being the parties’ home.

The parties’ lifestyle meant they lived between various properties, but the wife’s centre of interests remained in England.

The court therefore held that the wife was habitually resident in England for the preceding 12 months.

Decision

As a result of the findings made on where the parties last resided together and the wife’s habitual residence, the court granted the wife’s motion for a mandatory sist under the DMPA.

The effect of the sist in the Scottish proceedings is to prevent any further steps being taken in Scotland and to allow the English action to proceed in relation to divorce, financial provision and childcare.

There were no interim orders made in the Scottish proceedings here, but if there had, for example, been an order for interim aliment (maintenance), then that would also have been suspended.

The financial proceedings will therefore proceed in England and Wales.

Commentary

The case puts into sharp focus the need to consider jurisdiction at an early stage and obtain detailed information from clients at the outset about their (and their spouse’s) domicile and residence position.

Given the mandatory sist remedy provided by the DMPA, this applies equally when advising the first party to raise as it does when advising those who have been served with divorce proceedings.

Jurisdictional disputes can be costly. However, the differences between Scots and English law in relation to issues such as the financial provision available to the parties, childcare arrangements, payment for legal costs, or the length of time the process will take can mean that the identity of the court that is to divorce a couple can have a significant effect on outcome.

In some cases, this will justify the additional expense and risk associated with a jurisdictional dispute.

In addition to differences in substantive outcomes in the two jurisdictions, other issues such as where a client may be better to argue the sist/stay application, and the different approaches taken by the two courts to privacy and anonymisation may also impact on the advice which requires to be given.

If there is any question over competing intra-UK jurisdiction, bring in colleagues from north or south of the border early on to get advice about the differences.

A proper early analysis can help prepare for a possible future divorce in the more advantageous jurisdiction and is the best mitigation against excessive expense or an unsatisfactory outcome.

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