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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 4 / 12

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Regulation; and

  • the defender is not domiciled in Ireland and not a national of another EU state; and

  • either of the parties is domiciled in Scotland on the date the action is commenced

In the sheriff court there is an additional 40 day residence requirement, which may be fulfilled by either party (1973 Act, s12(5), s7(2A), s8(2)).

Who can raise divorce proceedings where in the following cases?

  • 1.

    Amy and Bill have been living in France. They separate and Amy returns home to Scotland. Bill stays in France.

  • 2.

    Christina and Dino have been living in France. They separate. Christina returns home to Scotland and Dino returns home to Spain.

  • 3.

    Esther and Frederic have been living in France. They separate. Esther returns home to Scotland and Frederic returns home to Switzerland.

  • 4.

    Gina and Huberto are Italian nationals living in France. They separate and Gina comes to Scotland, while Huberto goes to live in Spain.

Conflicts of jurisdiction in divorce proceedings - Europe and the world Article 19 of Brussels II bis provides: “1. Where proceedings relating to divorce, legal separation or marriage annulment

between the same parties are brought before courts of different member states, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court…”

Brussels II bis applies the principle of lis pendens, or ‘first come, first served’ to actions raised in two different member states. This provision does not relate to actions brought in different parts of the same state. It is relevant only to actions in

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