Jurisdiction

Jurisdiction

Contents

Jurisdiction of Scottish courts

To be able to use the courts in Scotland you must show that the court has jurisdiction. The rules of jurisdiction can be complicated but broadly the rules are:

  • You and your spouse are 'habitually resident' in Scotland. You are habitually resident in Scotland if you have lived there for at least a year before the application for divorce is being made.
  • Your spouse or civil partner is habitually resident in Scotland,
  • You and your spouse or civil partner were both last habitually resident together in Scotland and one of you still lives there.
  • You are habitually resident in Scotland having lived there for at least one year immediately before the application is made.
  • You are domiciled and habitually resident in Scotland having lived there for at least 6 months immediately before the application is made.
  • You and your spouse are domiciled in Scotland. (Not applicable to civil partners.)
  • If neither of you are resident in Scotland but you still regard yourself as domiciled in Scotland (i.e. Scottish), you may be able to use domicile as a basis of jurisdiction although this might depend on whether or not you are a national of a European Union country. In this case you should get legal advice.

Courts with jurisdiction

A divorce or dissolution can be brought in the Court of Session in Edinburgh (the main court in Scotland), or in local sheriff courts. Most cases are brought in the sheriff courts because it's much cheaper.

A sheriff court will only have jurisdiction to hear your divorce or dissolution if one of the following applies:

  • You or your spouse/civil partner have lived within the sheriffdom for at least 40 days before the date of signing the application.
  • Either you or your spouse/civil partner have no known residence in Scotland, but did live within the sheriffdom for at least 40 days, ending not more than 40 days before the date of your signing the application.

Rules of jurisdiction

If none of the above applies, the courts of Scotland may still, in very limited circumstances, be able to hear your application, but you should seek specific legal advice on this point.

Domicile

You are domiciled in the country in which you have, or are deemed by law to have, your permanent home. In some cases, you may have no permanent home, but the law requires you to have a domicile. Similarly, you may have more than one home, but you can have only one domicile.

Domicile of origin

The domicile of origin is gained at birth. It will be the same as the father's if the child is –born to married parents or the mother's if the child is born to unmarried parents, until proven otherwise. It is not determined by the place of birth.

This domicile cannot be taken away, but it can be suspended if a domicile of choice or a domicile of dependence is acquired.

Domicile of dependence

Children under 16 and people suffering from mental incapacity can acquire a domicile of dependence based on the domicile of the person on whom they are legally dependent.

Domicile of choice

Any person, not legally dependent on another, may at any time change their existing domicile and get a new domicile in another country if they intend to:

  • Make their sole or principal permanent home in that country of residence; and
  • Continue to live there indefinitely.

It doesn't matter how long they choose to live there, as long as they have the required intention to make that country their permanent home.

Habitual residence

Habitual residence means that a person lives somewhere regularly and is only away temporarily. To establish habitual residence a person must be physically present in a particular place voluntarily and with the intention to remain there for a significant amount of time.

The test of habitual residence is where a person has substantial links with a country in which they live.

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