The Court of Session has refused a husband’s late request to pause a Scottish divorce in favour of proceedings he had started in California. Although the marriage was more closely connected with California, putting the Scottish action on hold weeks before a fixed proof would have been unfair to the wife.
Background
The parties married in the United States and lived in California for most of their marriage. In 2024 the family moved to Scotland, and the parties separated in December 2024. Following separate proceedings about the children, the husband and the three children returned to California in May 2026. The children’s arrangements were not part of this action.
The wife raised divorce proceedings in the Court of Session, which were served on the husband in November 2025. In March 2026 the court fixed a four-day proof to begin on 13th October 2026. The husband, who represented himself, accepted that the Scottish court had jurisdiction because the wife had been habitually resident in Scotland for a year before the action was raised.
In July 2026 the husband raised proceedings for legal separation in the Superior Court of California and asked the Court of Session to sist (pause) the Scottish divorce until the Californian proceedings were decided. He could not yet seek a divorce in California, because he would not meet its residence requirement until late November 2026. He said that he intended to convert the separation proceedings into divorce proceedings once he could.
The legal framework
The motion was made under paragraph 9 of schedule 3 to the Domicile and Matrimonial Proceedings Act 1973, and also on the plea of forum non conveniens. Paragraph 9 allows the court, before the proof begins, to sist a consistorial action where other proceedings in respect of the marriage are continuing in another jurisdiction and the balance of fairness (including convenience) between the parties makes it appropriate for those proceedings to be disposed of first. The court must have regard to all relevant factors, including the convenience of witnesses and any delay or expense that may result from the proceedings being sisted, or not being sisted.
The parties agreed that the court should take the same approach as at common law in forum non conveniens cases. Lady Tait referred to Mitchell v Mitchell 1992 SC 372, which directs the court first to consider the overall connection of the marriage with each jurisdiction. She also referred to the two-stage test in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, applied to divorce in de Dampierre v de Dampierre [1988] AC 92. Under that test, the party seeking the sist must show another available forum that is clearly more appropriate, after which the other party may show why justice nonetheless requires the case to continue here.
The decision
Lady Tait accepted that the Californian separation proceedings were “other proceedings in respect of the marriage” within paragraph 9, and that they were continuing. She also accepted that the family’s overall connection was with California rather than Scotland. The parties had lived there from the marriage until 2024, the children were born there and now live there, and none of the heritable property was in Scotland: two properties were in California and two in England.
That was not enough to justify a sist. The motion had been made at a very late stage, more than eight months after the action was served and with a proof already fixed. A sist would deprive the wife of a decision on divorce and financial provision that she could reasonably expect within 2026. By contrast, divorce proceedings in California could not begin until the end of November 2026 and, if defended, were not expected to finish before 2027 or 2028. A sist would also mean duplicated proceedings and considerable further expense for both parties, after extensive disclosure and several opposed motions in Scotland. The court also took into account the urgency the wife claimed over her allegations about the handling of matrimonial funds. The husband disputed those allegations, and they were not decided at this hearing.
The husband’s arguments did not change the balance. The children’s presence in California carried less weight because their care had already been decided in separate proceedings. The Court of Session regularly deals with assets outside Scotland, and the husband, living in the United States, could help with disclosure of Californian documents. On his suggestion that the wife had chosen Scotland for a financial advantage, Lady Tait noted that a sist is not normally refused merely because a pursuer would lose a legitimate advantage. It follows that a sist should not be granted where substantial justice would not be done abroad, or where the balance of fairness points the other way.
The motion was refused and the question of expenses was reserved.
What it means in practice
- Timing matters. A party who wants a Scottish divorce paused in favour of foreign proceedings should move early. The closer the case is to proof, the more weight the court will give to delay, duplication and cost.
- A closer connection elsewhere is not decisive on its own. Under paragraph 9 the question is the balance of fairness between the parties at the time the motion is made.
- Proceedings that cannot yet deliver a divorce carry less weight. Separation proceedings that are waiting for a residence period to be completed are unlikely to justify pausing a Scottish divorce that is ready for proof.
- Assets abroad do not make Scotland the wrong forum. The Court of Session regularly deals with property outside Scotland.
If your divorce has a connection with another country, early advice on where and when to raise proceedings can make a real difference. Contact us to speak to one of our accredited family law specialists.