S v S [2025] CSOH 80 (Outer House, Court of Session)

Divorce jurisdiction determined by habitual residence — mandatory sist granted in favour of English proceedings

Background

This jurisdictional case, decided by Lady Tait in the Court of Session, examined competing divorce actions raised in Scotland and England between a couple with strong cross-border links.

The husband, a Scottish landowner and businessman, raised divorce proceedings in the Court of Session on 28 March 2025. The wife, a Japanese-born British citizen living in London, issued her own proceedings in the Central Family Court, London on 7 April 2025. She applied to the Scottish court for a mandatory sist (pause) under Schedule 3 of the Domicile and Matrimonial Proceedings Act 1973, arguing that the parties’ last residence together was in England and that she had been habitually resident there for the previous 12 months.

The couple’s lifestyle included multiple homes — a London property, a Scottish estate, a cottage in Aberdeenshire, and a villa in Mustique — but the central issue was where they last lived together as husband and wife.

Key legal issues

The court had to decide:

• Where the parties “last resided together” for the purposes of Schedule 3 para. 8(c) of the 1973 Act; and
• Whether either party was habitually resident in England for the 12 months before that date.

The wife claimed they reconciled in London after a brief separation in 2024 and lived there together until 27 March 2025. The husband argued that the relationship ended months earlier in Scotland and that any subsequent co-residence was temporary.

Evidence

After hearing detailed evidence from both parties and numerous witnesses, Lady Tait accepted that despite their marital difficulties — including a police incident at the Scottish cottage — the couple had reconciled by late October 2024. They then spent significant time together in London through late 2024 and early 2025, including travelling to Ukraine for the birth of their daughter via surrogacy.

Witness testimony and travel records supported that they lived as a family unit in the Fulham house after returning from Ukraine in March 2025. The wife’s professional, medical and social life was based in London, and the Scottish properties were used as holiday or estate residences.

Decision

The Court of Session granted the wife’s motion for a mandatory sist.

Lady Tait held that the parties last resided together in London on 27 March 2025, the day before the Scottish action was raised. The wife had been habitually resident in England for the preceding year. Accordingly, under Schedule 3 para. 8 of the Domicile and Matrimonial Proceedings Act 1973, the Scottish action had to be paused in favour of the English proceedings.

Lady Tait emphasised that “resided together” means more than merely sharing a property — it involves living together as husband and wife. Habitual residence, she confirmed, is a qualitative test centred on where a person’s life is truly based, not a count of days spent in each country.

Key takeaway

This decision shows that where couples have homes in both Scotland and England, jurisdiction turns on the substance of their married life. Courts assess where their real domestic centre lies — not where assets are owned or holidays spent. If the habitual residence and last marital home are in England, the Scottish court must sist proceedings to allow the English divorce to proceed first.

Citation: S v S [2025] CSOH 80 (Outer House, Lady Tait, 22 August 2025)