DIVORCE AND CUSTODY LAW IN SCOTLAND
Divorce Jurisdiction Sections 7 and 8 of the Domicile and Matrimonial Proceedings Act 1973
give the Court of Session in Scotland jurisdiction in actions of
divorce or separation if (a) jurisdiction is conferred under Council
Regulation (EC) No. 1347 ("Brussels II") or (b) the action is an
“excluded action” and either of the parties to the marriage is
domiciled in Scotland on the date when the action begins.An “excluded
action” is one in respect of which no court of a Contracting State has
jurisdiction under the Council Regulation and the defender is neither a
national of an EU state (other than the UK or Ireland) nor domiciled in
Ireland. The Sheriff Court has jurisdiction if (a) the conditions for the
exercise of jurisdiction by the Court of Session are met and (b) either
spouse (i) was resident in the Sheriffdom for forty days ending with
the date on which the action for divorce is commenced or(ii) had been
resident in the Sheriffdom for at least forty days ending not more than
forty days before the said date and has no known residence in Scotland at that date. Custody Jurisdiction If a court in Scotland is exercising jurisdiction in a proceeding for
divorce, legal separation or annulment, it will have jurisdiction as to
matters of parental responsibility over the spouses’ child if the child
is habitually resident in Scotland. If the child is not habitually
resident in Scotland, the court may still exercise jurisdiction if the
child is habitually resident in another EU Member State;at least one
parent has parental responsibility for the child; jurisdiction has been
accepted by the spouses; andit is in the best interests of the child. In actions relating to parental responsibilities which are not subject
to the EU’s Brussels II regulation, jurisdiction exists where the
childis habitually resident in Scotland oris present in Scotland and is
not habitually resident in any part of the UK (unless, in either case,
matrimonial proceedings are continuing in a court in the UK concerning
the marriage of the parents of the child (Family Law Act 1986), when
that court would have jurisdiction). Marriage The formal validity of a marriage is governed by the law of the place
where the marriage is celebrated. This law governs the validity of the
ceremony and its elements e.g. whether any particular form of words
must be used, whether the marriage must take place in a particular
location, whether a marriage can be conducted by proxy. The capacity of one person to marry another is governed by the domicile
of the former immediately before the marriage. This law regulates
issues such as whether there was consent, age requirements and which
relatives one may not marry. In the case of age, no person domiciled in
Scotland has capacity to marry abroad if under 16. The issue of parental consent is slightly more complex. If under the
law of the domicile absence of parental consent will render the
marriage void no matter where in the world it is celebrated, then it is
a matter of capacity. On the other hand, if it is a procedural
requirement then it is a matter of formal validity. Marriages of young
people aged between 16 and 18 without parental consent where those
young people are from England but marry in Scotland have long been
regarded as valid in Scotland, on the basis that the English
requirement for parental consent is a formal one. Divorce Law In respect of a divorce, a Scottish court having jurisdiction and
hearing the case will apply Scots law to the divorce proceedings. In
proceedings for a decree of nullity, the law of the place of
celebration or law of the domicile prior to the marriage will probably
apply, depending on whether the alleged ground of nullity relates to
formal or material validity. In respect of maintenance obligations, a Scottish court will apply Scots law where it has jurisdiction and is hearing the case. Matrimonial property regimes In the absence of a marriage contract, the rights of the husband and
wife in each other’s movable property (whether acquired before or
during the marriage) is determined by the law of the matrimonial
domicile at the time of the marriage. Where the domiciles of husband
and wife are the same at this time, this will be the matrimonial
domicile. It is not entirely clear what would happen if they were not
the same. It is possible that a test of closest connection would apply,
or that the court would look to the intended matrimonial home. The same
rule probably applies to immovable property, though this is not totally
clear and the law of the place where the property is located may also
have a role to play. If there is a marriage contract, the law applicable to the contract
will govern. In the absence of choice, this is likely to be the law of
the matrimonial domicile. Personal status At birth, a child’s domicile (the domicile of origin) is the same of
the child’s father at the time of the child’s birth, if the child is
legitimate. If the child is not legitimate, or if the father has died
before the child is born, the domicile of origin is that of the child’s
mother at the time of the child’s birth. This rule continues to apply
until the child is 16, i.e. the domicile changes to follow changes in
the domicile of the father or mother respectively. However, if the
parents separate and the child has its home with the mother only, it
can then take and follow the domicile of the mother, even though the
domicile of origin was based on that of the father. For persons over 16, their previous domicile continues to apply unless
they take a domicile of choice. To adopt a domicile of choice, the
person must live in the relevant country and intend to continue doing
so indefinitely or permanently. If a domicile of choice is abandoned,
the domicile of origin will revive to fill any gap until a new domicile
of choice may be acquired. The domicile of married persons is assessed independently of that of
the other spouse, although clearly they are likely to have the same
domicile if they are living together. The issue of whether a person is domiciled in a particular country will
generally be decided by Scots law, in the absence of any provision to
the contrary in e.g. an international instrument to which the UK is
party. The right to name a child is part of parental rights and
responsibilities, and if disputed the court would probably make a
decision according to Scots law, which would require the welfare of the
child to be treated as paramount. Adults are generally entitled to call
themselves by what name they like in Scotland, so long as there is no
fraudulent intent. Capacity to enter into contracts, commit delicts, make wills etc is
governed by different laws depending on the issue in relation to which
the question of capacity arises. Parent-child Relationship The
rights and responsibilities of parents in relation to their children
would be determined according to Scots law whenever the Scottish courts
have jurisdiction and are considering the case. Scotland applies the
law of the forum in these matters. The same is true of adoption and
guardianship. The overriding Scottish test in all these situations is
the welfare principle. So far as legitimacy of the child is concerned, this now has very few
consequences in Scotland apart from domicile (see above). However, in
an international case the child will probably be regarded as legitimate
at birth if that is the case under the law of the domicile of either
parent. In cases of legitimation by subsequent marriage of the parents,
provided the marriage itself is valid under the appropriate choice of
law rule, the effect of the marriage on the child’s status is probably
dependent on the law of the child’s domicile immediately before it. It is not clear what the Scottish applicable law rule is in relation to
the issue whether a particular person is or is not a parent of a child.
