Few areas of legal practice expose the tensions of cross-border life as acutely as family law. When relationships break down for families whose lives straddle borders, determining which court has jurisdiction (in essence the authority to determine the case), and if so, whether its orders will be recognised abroad, can be as fraught as the underlying dispute. Post-Brexit, the legal landscape has made these questions more pressing than ever.
The jurisdictional framework
Scottish courts derive jurisdiction in cross-border family matters from a patchwork of domestic and international legislation. For divorce actions, the principal statute is the Domicile and Matrimonial Proceedings Act 1973 (as amended), which grounds jurisdiction in either the habitual residence or domicile of the parties. After Brexit, the EU jurisdictional rules fell away, and Scotland relies on these domestic provisions alone. Jurisdiction in child related cases over the grant of, or exercise of, parental responsibilities in intra UK cases, including residence and contact orders, is governed by Part I of the Family Law Act 1986, operating alongside the 1996 Hague Convention on Parental Responsibility. The 1980 Hague Convention on International Child Abduction remains central to summary-return proceedings; the 2007 Hague Convention and Protocol govern the international recovery of maintenance; and the 1970 Hague Convention facilitates divorce recognition abroad. The Children (Scotland) Act allows the Scottish Courts to make orders both if a child is habitually resident in Scotland, but also using its emergency jurisdiction (where habitual residence cannot be established) where necessary for the protection of child’s welfare.
Underpinning all of these are the Scots common law concepts of domicile and forum non conveniens – in colloquial terms, which is the most appropriate forum to determine this issue.
Practical challenges in determining jurisdiction
Habitual residence is the gateway to establishing jurisdiction in most cross-border disputes, yet it remains a really fact-sensitive concept - often difficult to establish for children and for parties with genuine links to more than one country, although the Courts have determined in several (fact specific) situations that it has changed in a really short period. Domicile, by contrast, is a technical concept rooted in Scots law: a domicile of origin can revive if a domicile of choice is abandoned, and it may diverge sharply from where a person actually lives. Because domicile is often integral to found jurisdiction for divorce and financial provision, it generates significant strategic complexity. The loss of the strict “first seised” (lis pendens) mechanism under Brussels IIa has re-opened the door in some ways to parallel proceedings and forum shopping. Scottish courts may once again apply forum non conveniens to sist (stay) proceedings, restoring judicial discretion but creating uncertainty. There can be a tactical race to issue in the most favourable jurisdiction, and practitioners must be alive to this risk from the outset.
The impact of brexit
Council Regulation (EC) No 2201/2003 (known everywhere as Brussels IIa) governed jurisdiction, recognition, and enforcement in matrimonial and parental-responsibility matters until 31 December 2020, when it ceased to apply to new proceedings in the UK (transitional provisions preserve it for earlier cases). The Maintenance Regulation (EC) No 4/2009 similarly fell away. The Recast Regulation (EU) 2019/1111 (known by family lawyers everywhere as Brussels IIb) has applied among EU Member States since 1 August 2022, but the UK is not a party. The practical consequences are significant. Scottish orders no longer benefit from near-automatic recognition across the EU. Enforcement abroad now depends on the applicable Hague Convention -1996 for children, 2007 for maintenance, 1970 for divorce - or on the domestic law of each foreign state. This can mean increased cost, delay, and unpredictability for clients whose lives straddle national borders.
Strategies and best practices
First, talk to someone to explore jurisdiction and what the impact of that country’s legal system (and possibly Courts) might mean. At the outset of every cross-border instruction, we map the habitual residence and domicile of each party and child, and identify every potentially competent forum.
Second, act quickly where a race to issue is a real risk, but do so advisedly. We weigh the strategic merits of each available forum, including financial outcomes and, critically, enforceability. Issuing first is not always issuing best. Third, anticipate the risk of parallel proceedings. If one court action is stressful and expensive, we want to avoid the possibility of two court actions in competing jurisdictions. We will always consider the appropriate forum, and advise the client clearly on the implications of competing actions in different countries. Fourth, coordinate early with trusted foreign lawyers to understand recognition and enforcement prospects, secure interim protective measures, and consider mirror orders and undertakings. Such coordination is no longer a luxury; it is a necessity.
Conclusion
Cross-border family law in Scotland is more complex and less predictable than at any point in recent memory. The overlapping frameworks of domestic statutes, the Hague Conventions, and private international law demand careful navigation. Rigorous preparation, prompt action, and effective cross-border collaboration remain the hallmarks of sound practice in this challenging area. For more information, contact our expert family law team.
