Jurisdiction

Jurisdiction

Jurisdiction of Scottish courts

In divorce, civil partnership dissolution, or separation cases, the Scottish court will have jurisdiction to hear your application if one of the following statements is true:

  • either you or your spouse or partner was domiciled in Scotland on the date when you started your application; or
  • either you or your spouse or partner was habitually resident in Scotland for the year up to the date of your application. (See also below under Courts with jurisdiction for other residence requirements.)

If neither of the above statements applies to you, the courts of Scotland may still, in some circumstances, be able to hear your application. For example, if you're in a same-sex marriage or civil partnership that was formed in Scotland and no court is recognised as having jurisdiction, the courts in Scotland might assume jurisdiction. They'd do this if it was in the interest of justice to do so, but this 'jurisdiction of last resort' is complicated and you would need to seek 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.

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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