Jurisdiction

In today’s world, more and more people work and live in different countries from where they were born and also where they may have been married. Before embarking on any legal action it is necessary to establish whether you have jurisdiction.

Jurisdiction is largely based on ‘habitual residence’. Habitual residence is where one of the spouses is normally resident in Scotland. If neither you nor your partner are resident in Scotland but you still regard yourself as Scottish, then you may be able to establish jurisdiction here but only if your partner is not resident within a member state of the EU. If they are then they need to apply to the Court where they are resident. 

The rules regarding jurisdiction are very complicated. It is sometimes possible for a divorce action to be raised in two different countries and that can sometimes happen and there can then be an issue about which court and laws prevail.

In Scotland there are two courts where you can raise an action of divorce. The most common is in the Sheriff Courts which are the local courts and are usually a lot more cost efficient. You have to be resident however within that Sherrifdom within 40 days prior to the raising of the action. 

The other Court at which you can seek a divorce is in the Court of Session in Edinburgh. That however is likely to cost significantly more because Counsel will be involved. It is much less common to raise an action in the Court of Session these days.