DIVORCE AND CUSTODY LAW IN SCOTLAND
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.
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).
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.
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.
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.
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.