EUPillar Williamson v Williamson Sheriff Court (Tayside, Central and Fife) (Kirkcaldy) [2009] Fam.L.R. 44, [2009] G.W.D. 14-220, [2009] ScotSC 18 (Sheriff AG McCulloch)

Summary

This case raised the problem of divorce jurisdiction. The couple married in March 2004 and lived in Scotland. In July 2005 they purchased a property in Spain. They disagreed as to whether this property was their holiday home or principal residence. In early 2008 the couple separated and the husband initiated divorce proceedings before the Sheriff Court in Kirkcaldy, relying on Brussels IIa, Art 3(1)(a)(final indent). The wife contended that the Scottish courts did not have jurisdiction to hear the case as both parties had been resident and domiciled in Spain, and that she intended to raise divorce proceedings in Spain. The sheriff explained that there were three elements that had to be established: first, the applicant’s domicile in Scotland; second, the applicant’s habitual residence in Scotland; and third, the applicant’s residence in Scotland for the last six months prior to the raising of the action. The sheriff found in favour of the husband on all three points. In relation to domicile, the court pointed out that, in accordance with Art 3(2) of the Regulation, the common law concept of domicile in Scotland was to be applied. After reviewing the facts of the case and previous case-law on domicile, the sheriff concluded that the wife had failed to prove that the husband had acquired a domicile of choice in Spain. This was primarily because he considered the house in Spain as a holiday home, continued to have his work base in Scotland and continued to seek employment outwith Spain. Even if that was not the correct conclusion, the husband had re-acquired his domicile of origin in Scotland after the marriage breakdown in early 2008. On the meaning of “habitual residence”, the sheriff was referred to a number of CJEU and English cases, including Magdelena Fernandez v Commission (Case C-452/93P); L-K v K (No 2) [2007] EWHC 3202 and Marinos v Marinos [2007] EWHC 2047 (Fam). The sheriff relied on the definition of habitual residence being the person’s “centre of interests” (see Alegria Borras’s Explanatory Report to the Brussels II Draft Convention). A “centre of interests” approach was adopted in the Fernandez and L-K cases. The sheriff held that as the husband’s centre of interests at the time of raising the action was in Scotland he was habitually resident there. The final requirement under Art 3(1)(a)(final indent) was a six-months residence period in Scotland immediately before the divorce application. The sheriff expressed the view that although one could not be habitually resident in two countries, one could reside in two countries. He had spent roughly equal periods of time in Scotland and Spain during the 6 months period. Accordingly, he had met the residence requirement of Brussels IIa and was entitled to raise divorce proceedings in Scotland. He also had to fulfil the requirements of the Domicile and Matrimonial Proceedings Act 1973, section 8(2)(b)(i), to be able to bring his action in the local sheriffdom. The applicant must be resident in the sheriffdom for a period of 40 days prior to raising the action. The sheriff held that it would be illogical to read “resident” in this context as requiring physical presence over the entire period and instead determined his “principal” place of residence, which was in the relevant sheriffdom. This point (but not the Brussels IIa points) was appealed by the wife in Williamson v Williamson, 2010 SLT (Sh Ct) 41. The sheriff principal upheld the first instance decision. The appellate decision is not included in the database as it concerns an internal issue. Both the sheriff and the sheriff principal were influenced in their interpretation of “residence” for 40 days in the sheriffdom rule by giving the word an interpretation consistent with that found in Brussels IIa. The fact that the applicant spent roughly equal times in the relevant sheriffdom and in Spain during the 40 days prior to bringing the action was consistent with him being resident in the sheriffdom for 40 days.