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Message started by paper on Jan 30th, 2013 at 11:28am

Title: a simplified-divorce applicn to CoS - some qns!
Post by paper on Jan 30th, 2013 at 11:28am
I'd be grateful for some advice on whether the Court of Session is likely to accept jurisdiction if it receives an application for a divorce using the simplified procedure in the following case.

A couple married in Scotland 15 years ago. The husband is a UK national; the wife is a Norwegian national. Neither of them have any other nationality. After living in Scotland for the first 7 years of their marriage, they have for the past 8 years lived in England, Wales, and outside of the UK, including in England for the last 5 years. The husband bought a house in Scotland 1.5 years ago and is domiciled in Scotland. I.e. he considers that house to be his permanent home and intends to live there indefinitely. He is only in England at the moment because he is trying to sell the former marital home in England and is dealing with some other family responsibilities there. Husband and wife have lived apart for 2 years.

The husband wishes to get a divorce in the Court of Session using the simplified procedure. His wife will agree to that. There are no children aged under 16, and (unusually!) there are no financial or property issues.

The question is: will the CoS accept jurisdiction?

In Section 3 ("Jurisdiction") of the simplified-procedure divorce application form (49.73A(SPA)), the husband will not be able to tick any box in Part A, because each box requires either that one or both partners are "habitually resident" in Scotland or that both are domiciled there. But he will able to tick box (i) in Part B, which says "I am domiciled in Scotland". He will also be able to give his address as his Scottish address, at the start of the form.

Note that there is no 40-day rule, because this would be in the CoS, not a local Sheriff Court.

For the CoS to have jurisdiction, box B(iii) also needs to be ticked. This says "No court of a Contracting state has jurisdiction under the Council Regulation".

Can he tick that?

I am confused!  :-/

First issue: is Norway a contracting state?

The note on the form says that "Part B applies where the defender is not a national of a Contracting State (other than the UK or Ireland) or domiciled in Ireland".

This relates to the EC Council Resolution 2201/2003, 27 Nov 2003

My first thought was that Norway is not in the EU and therefore is not a contracting state. However, it is in the EEA, and is grouped with EU countries for various UK purposes. Does some kind soul know what the precise position is here?

Second issue: will the CoS say "sort this out in England"?

The question here is might the English courts have jurisdiction, given that both partners are currently resident in England, and the wife is also domiciled there?

If so, does that actually matter, given that both partners want to get divorced using the Scottish simplified procedure?

In short, will the CoS say "look, you can deal with this in England, so please do so"?

Third issue: any possible English jurisdiction in the event of post-divorce litigation"?

Both parties are seeking to end the marriage in the simplest possible way here! This is one of the attractions of the Scottish simplified procedure. Having agreed on financial matters, they don't want any possibility of the other party coming back later and making a financial claim.

Do they both give up their rights to start proceedings in another jurisdiction as soon as they accept Scottish jurisdiction?

If we assume that the CoS accepts jurisdiction and grants the divorce, then in theory neither party should be able to press a new lump-sum claim on the other afterwards. Neither of them at the moment actually wants to. But could they change their mind and start a financial claim in an English court?

The reason this arises is because the husband owns a property in England - the former marital home - which he is trying to sell. The wife insists that agreeing to the husband's CoS divorce application is a sufficient way for her to say irrevocably that she does not want any of the proceeds of the house sale. On paper, and in Scottish law, that looks right. She's refusing to sign anything else, because she says signing the "Consent" part of his application is all she needs to do.

Many thanks in advance for any help with this!

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