Date: Aug 23, 2025

“Resided Together” Means Living as Spouses: First Scottish Guidance on Paragraph 8(c) DMPA 1973 and Habitual Residence in Cross‑Border Divorce

Commentary on JMS against HMS (Court of Session) [2025] CSOH 80

Introduction

This decision of the Outer House of the Court of Session (Lady Tait) addresses a recurring cross‑border problem within the United Kingdom: when parallel divorce proceedings are raised in Scotland and in England and Wales, which court should proceed first? The answer turns on the mandatory or discretionary “sist” (stay) mechanism under the Domicile and Matrimonial Proceedings Act 1973 (the 1973 Act), Schedule 3.

The pursuer (husband, JMS) raised divorce proceedings in Scotland on 28 March 2025. The defender (wife, HMS) issued divorce proceedings in the Central Family Court, London on 7 April 2025. The defender sought, first, a mandatory sist of the Scottish action under paragraph 8 of Schedule 3, which, if unavailable, she sought alternatively on a discretionary basis under paragraph 9.

The jurisdictional contest focused on two linked issues under paragraph 8: (i) identifying where and when the parties last “resided together” before the Scottish action was begun; and (ii) whether either party was habitually resident in that jurisdiction throughout the year ending with that date. The defender contended the parties last resided together in London, and that she had been habitually resident in England throughout the preceding year. The pursuer disputed both propositions, maintaining that the parties’ last co‑residence was in Scotland, and that, in any event, the defender’s habitual residence was not in England.

The case is particularly noteworthy because Lady Tait set out, for the first time in a reported Scottish decision, an approach to the phrase “resided together” in paragraph 8(c) of Schedule 3. She held that it denotes more than mere co‑presence in the same property: it evokes the parties’ living arrangements “as husband and wife,” assessed objectively on the facts. That clarification provides much‑needed guidance in UK intra‑jurisdictional divorce contests post‑Brexit.

Summary of the Judgment

The court granted a mandatory sist of the Scottish proceedings under paragraph 8 of Schedule 3 to the 1973 Act. It found that:
- The parties last “resided together” in London, at the Fulham house, on 27 March 2025 (the day before the Scottish action was raised).
- The defender was habitually resident in England throughout the year ending on that date.
In reaching the “resided together” conclusion, Lady Tait emphasized that the concept requires more than being under the same roof: it involves an objective appraisal of whether the parties were living together as spouses. The court found that, despite a serious rupture in September 2024, the couple resumed living together as husband and wife from late October 2024 through 27 March 2025.
On habitual residence, applying well‑established principles, the court concluded that the defender’s “centre of interests” was in London and had remained so. The fact that the Fulham house was frequently short‑let did not preclude it being the parties’ home. Nor did time spent in Scotland displace the defender’s long‑standing London focus.
Having found the mandatory criteria made out, the court did not need to exercise the discretionary sist power, but set out the governing principles (forum non conveniens approach) for completeness.

Analysis

Precedents Cited and Their Influence

Although there was no reported Scottish authority specifically on “resided together” within paragraph 8(c), the court drew on adjacent lines of case law to shape its approach:

CD v ND 2025 Fam LR 62 (Lady Wise) — On disputed dates of cessation of cohabitation, the court’s inquiry is objective and fact‑sensitive with no exhaustive checklist. Lady Tait extrapolated this ethos to the “resided together” inquiry: labels and subjective intent are less probative than the real substance of how the parties were living.
Marinos v Marinos [2007] EWHC 2047 (Fam) and Pierburg [2019] WLR 4335 — These English authorities articulate habitual residence as a “permanent or habitual centre of interests” and stress that one can have only one habitual residence at a time, that the test is qualitative not quantitative, and that relocation can occur quickly if purposeful. Lady Tait adopted these principles in determining the defender’s habitual residence.
A v A (Children: Habitual Residence) [2013] UKSC 60 — The Supreme Court warned against overlaying the factual habitual residence inquiry with legal glosses that distort outcome. This supported a grounded, real‑life appraisal of where the defender’s life was centred.
Munro v Munro [2007] EWHC 3315 (Fam); Dickson v Dickson 1990 SCLR 692; D v D 2002 SC 33; AR v RN [2015] UKSC 35 — These emphasize that habitual residence is a factual state requiring stability (not permanence), voluntariness, and an appreciable period of time, with settled intention relevant but not decisive. The court relied on these to reject the suggestion that time in Scotland, or the estate‑house project, had shifted the defender’s habitual residence from London.
De Dampierre v De Dampierre [1988] AC 92 and Mitchell v Mitchell 1992 SC 372 — On a discretionary sist, the approach parallels forum non conveniens with lis alibi pendens: the court considers overall connections and whether substantial justice will be done elsewhere. The court rehearsed these, though they were ultimately unnecessary given the mandatory sist.

Together these authorities anchored the judgment’s two pillars: (i) a fact‑intensive, objective test for whether the parties “resided together” as spouses; and (ii) a qualitative, centre‑of‑life approach to habitual residence.

Legal Reasoning

1) The statutory framework

Schedule 3 to the 1973 Act draws a distinction between:

Mandatory sist (para 8) — the Scottish court must sist (stay) if, in respect of the same marriage, proceedings are continuing in a related jurisdiction (here, England and Wales), the parties have resided together post‑marriage, the place where they resided together when the Scottish action was begun (or, if not then residing together, where they last resided together before that date) is in that other jurisdiction, and either party was habitually resident there throughout the preceding year.
Discretionary sist (para 9) — before proof, the court may sist if other proceedings are continuing elsewhere and the balance of fairness (including convenience) favours those proceedings going first.

2) What does “resided together” mean?

The judgment breaks new ground by clarifying that “resided together” in paragraph 8(c) means more than mere co‑presence in the same dwelling. In the context of divorce, the court must examine the reality of the parties’ living arrangements “as husband and wife.” The inquiry is objective and intensely fact‑sensitive.

Applying that approach, the court accepted that a significant rupture occurred on 26 September 2024 (police involvement, the pursuer’s email stating the parties had “parted ways,” the return of a vehicle, discarding of a wedding ring, and the defender’s new dog). However, taken together, the subsequent facts pointed to a resumption of married life from the end of October 2024 until 27 March 2025:

Sexual relations resumed in late October and continued intermittently thereafter.
Joint social and family activities (attending a birthday party; entertaining friends; making family Christmas arrangements).
Joint attendance at interior design meetings for the Scottish estate house (through to March 2025).
A jointly planned family holiday to Mustique booked in January 2025.
Public, affectionate communications (e.g., the pursuer’s Valentine’s message in February 2025).
Shared time abroad for the birth and early care of their daughter in Ukraine (December 2024 to January 2025), living as a family unit.

On that evidence, the court held that the parties last resided together, as spouses, in London at the Fulham house on 27 March 2025, the day before the Scottish proceedings were initiated.

3) Habitual residence

The court then asked whether either party was habitually resident in England during the year ending on 27 March 2025. It concluded that the defender was:

The defender’s long‑standing connection to London — property ownership, career base, friends, administrative life (NHS registrations, etc.) — indicated that her “centre of interests” remained London.
The fact that the Fulham house was frequently short‑let did not stop it being a family home. The parties’ lifestyle and means allowed for multiple homes. Short‑lets and blocked‑out periods were consistent with owner use.
The Scottish projects (renovations, cookery‑school idea) did not prove a shift in habitual residence; they were compatible with second‑home use.
Time spent in Scotland, even for extended periods, did not outweigh the qualitative indicators pointing to London as the defender’s habitual residence.

In line with Marinos, Pierburg and UKSC guidance, the court’s analysis was qualitative: it did not count days, but assessed where real life was anchored. Stability, not permanence, was key; a person can have only one habitual residence.

4) Discretionary sist

Having found the mandatory criteria satisfied, the court granted a mandatory sist and did not need to decide the discretionary sist. It nonetheless recalled that, under De Dampierre and Mitchell, the discretionary power aligns with forum non conveniens principles and is not trumped by early filing in one forum when actions are at an early stage.

5) Burden and standard of proof

The onus lay on the defender to make out the paragraph 8 criteria. She discharged that burden on the balance of probabilities, particularly through documentary and circumstantial evidence showing a resumption of married life and the London‑centred nature of her life.

Impact and Significance

This judgment is significant for several reasons:

First reported Scottish guidance on “resided together” under paragraph 8(c): By insisting on an objective, fact‑sensitive inquiry into whether the parties were living as spouses, Lady Tait fills a doctrinal gap and provides a workable test for future intra‑UK jurisdiction contests in divorce. This will guide litigants and courts on how to approach periods of rupture and reconciliation.
Evidence that counts: Social media posts, sexual relations, joint planning (holidays, renovations), and how couples present themselves to friends and third parties can be weighty indicators that they were indeed “residing together.” This underscores the practical importance of contemporaneous evidence beyond formal address records.
“Home” can coexist with short‑letting: The court’s acceptance that a property subject to regular short‑let can still be a family home reduces the risk that sophisticated property uses automatically defeat habitual residence arguments. This matters in high‑net‑worth and transnational family cases where multiple residences are common.
Qualitative habitual residence analysis reaffirmed: The decision applies and localizes post‑EU jurisprudence, emphasizing quality over quantity of time and focusing on the individual’s centre of interests. This will influence Scottish courts in cross‑border UK family litigation after Brexit.
Forum strategy: The timing of the “last resided together” date controls the one‑year habitual residence window. A party seeking a Scots forum should be alert to evidence suggesting a post‑rupture resumption of married life in another UK jurisdiction. Conversely, a party favouring the English forum now has a clearer evidential pathway to establish paragraph 8(c).
Limited weight of tax registrations and formal addresses: While relevant, these will not trump the real‑life picture. Lawyers should avoid over‑reliance on administrative labels where conduct points elsewhere.

Complex Concepts Simplified

Sist: The Scottish term for a “stay” of proceedings. A mandatory sist must be granted if statutory conditions are met; a discretionary sist may be granted if fairness and convenience so require.
“Resided together” (para 8(c)): Not merely being in the same place, but living together as spouses. The court looks at objective indicators: shared bedroom arrangements, joint social/family activities, mutual presentation as a couple, and ongoing household or family planning.
Habitual residence: Where a person’s life is really based — their stable, voluntary, and factual “centre of interests.” It is a qualitative test. One can have only one habitual residence for these purposes. Stability matters more than permanence.
Lis alibi pendens: Latin for “a dispute elsewhere pending.” When parallel proceedings exist, a court examines which forum is more appropriate, often using forum non conveniens principles.
Forum non conveniens: A doctrine allowing a court to stay proceedings if another court is clearly more appropriate to do justice between the parties.
Outer House: First‑instance civil jurisdiction of the Court of Session in Scotland. Its opinions are persuasive for other Outer House judges and may guide sheriff courts, especially where there is no previous authority.

Practice Points for Future Cases

For paragraph 8(c), compile evidence of the couple’s actual married life: joint attendance at social events, shared rooms, joint decision‑making (home renovations, childcare arrangements), travel together, and how each party publicly represents the relationship.
Preserve digital footprints (e.g., messages, social media posts) and third‑party corroboration (friends’ visits, professionals involved in projects) to demonstrate resumption or continuation of married life.
For habitual residence, focus on the centre of interests: where is one’s day‑to‑day life anchored (healthcare, childcare, friendships, business base)? Do not rely solely on headcounts of days or on formal registrations.
Where properties are part‑rented, evidence of owner‑stays, block‑outs, how the property is equipped for family life, and arrangements made for children (e.g., nursery set‑up) can rebut arguments that the property is “only an investment.”
Forum strategy should anticipate the decisive importance of the “last resided together” date: it determines both place and the look‑back period for habitual residence.

Conclusion

JMS v HMS [2025] CSOH 80 is a landmark Outer House decision offering the first reported Scottish guidance on the meaning of “resided together” in paragraph 8(c) of Schedule 3 to the 1973 Act. Lady Tait holds that the phrase calls for an objective assessment of whether parties were living together as spouses, not merely co‑present in the same property. On the facts, the court found a post‑September 2024 resumption of married life through to 27 March 2025 at the Fulham house, and that the defender had been habitually resident in England throughout the preceding year. Those findings triggered a mandatory sist in favour of the English proceedings.

The judgment also reaffirms the qualitative, centre‑of‑life test for habitual residence and clarifies that short‑letting a property does not preclude it being a family home. Taken together, these points significantly shape the approach to intra‑UK jurisdiction disputes in divorce, emphasizing real‑world living arrangements over formal labels and day‑counting. Practitioners should expect closer scrutiny of everyday conduct, family planning, and corroborative third‑party evidence in future contests over the place and sequence of proceedings.

Key takeaway: In cross‑border UK divorces, the “last resided together” inquiry now has a clear Scottish compass — look to the substance of married life, and to where a spouse’s centre of interests truly lies.