Lecture notes for the International Private Law module linked to E B Crawford and J M Carruthers, International Private Law in Scotland book. Author achieved a first-class grade for the module.
Topic 6: Marriage: Divorce Jurisdiction and Choice of Law Rules
Overview of Our Focus
Week 8:
Divorce Jurisdiction , Nullity of Civil Partnerships
and
Week 9: Recognition of Foreign Divorces
Jurisdiction for
Divorce, Nullity,
Separation:
Common Law,
and DMPA 1973
Basis for Actions: Civil
recognition of Partnerships:
foreign Marriage and Jurisdiction for
judgments :
Family Law Act
Other dissolution,
separation and
1986 Relationships nullity
Choice of law
rules for divorce,
nullity and
dissolution of
civil partnerships
Format of This Topic:
▪ Marriages (Same and Different Sex): Divorce, Separation and Nullity
▪ Civil Partnerships (Same and Different Sex): Dissolution, Separation and Nullity
▪ Choice of law in Divorce and Dissolution of Civil Partnership
▪ Next Topic: Recognition of Foreign Divorces
, Broad Questions to consider in this Topic
▪ Focus: How IPL rules enable divorce, separation, nullity proceedings to be brought in Scottish
courts and foreign divorces to be recognised in Scottish courts:
▪ Which IPL rules are used to establish…
1. Jurisdiction for divorce proceedings in Scotland
2. Choice of Law for divorce proceedings in Scotland
3. Next Topic: Recognition of foreign divorces
▪ Two related questions: what connecting factors do the courts use? Which court issued the
decision (e.g., divorce judgment) – rUK or non-UK court?
Jurisdiction in Divorce, Nullity and Separation
▪ Former common law:
Where one of the parties is not domiciled in Scotland or there is a non-Scottish connection to
the matter. It is about asserting a sufficient territorial connection because you cannot have
what is known as a limping marriage, you have got to have sufficient territorial connection to
bring the marriage to an end in a particular place because otherwise it could still be valid by
the place of the LLC but yet you are divorced here, so you have to have consistency and that
consistency is through a sufficient territorial connection to the jurisdiction. This was achieved
through the permanent domicile of the spouses.
Le Mesurier
This case basically said common domicile was a fair and satisfactory rule. But common
domicile does not mean the domicile of both parties but actually the domicile of the husband.
Because the common theme back then when a wife married, she became part of the marriage
and was therefore an extension of the marriage traditionally. Common domicile, a satisfactory
rule but not now in terms of society.
Att-General for Alberta v Cook - changes to domicile rule via statute to reflect society.
This case questioned the application of common domicile. If a woman can have her own
independent domicile, why does she need to reply on the husband’s domicile to bring divorce
proceedings? She separated from her husband; can she apply her own domicile to bring
proceedings on that basis? The law was not quite at the stage of giving the wife her own
independent domicile, so the same result occurred – she had to follow her husband’s
domicile., she then had to issue divorce proceedings there and was essentially barred from
doing it everywhere else.
There was a policy change which moved away from the old common domicile approach
enabling the wife to bring proceedings in either the English or Scottish courts based on her
residence. The territorial connection was not on the basis of the husband’s domicile, statute
moved away from that through law reform and enabled divorce proceedings on the basis of
the wife’s residence in jurisdiction.
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