Anonymised, Structured Summary of the Opinion
Factual and Procedural Background
This opinion was delivered by Judge Tait in Court A (Outer House). The motion before the court was the Defender's request for a mandatory sist, alternatively a discretionary sist, of divorce proceedings brought by the Pursuer in Court A under the Domicile and Matrimonial Proceedings Act 1973 (the "1973 Act"). A preliminary proof was held and evidence was led; the Defender was ordained to lead.
The parties married on 22 June 2021 in The City. They have one shared child born on 9 December 2024 in Country B. The Pursuer also has a son from an earlier marriage, born on 3 March 2011.
Procedurally, the Pursuer raised an action for divorce in Court A on 28 March 2025. The Defender instituted proceedings in Court B (a family court in The City) on 7 April 2025. The Defender applied to sist (stay) the Court A action on the basis that related proceedings were continuing in another jurisdiction and on the basis of habitual residence and/or the balance of fairness.
The Pursuer is represented by Attorney Shewan of Company A. The Defender is represented by Attorney Muir of Company B.
Legal Issues Presented
- Whether the statutory requirements for a mandatory sist under Paragraph 8 of Schedule 3 to the 1973 Act are met — specifically (as relevantly framed in the opinion) whether the parties' last place of residence together was in the other (related) jurisdiction and whether either party was habitually resident in that jurisdiction throughout the relevant 12‑month period.
- If the mandatory sist requirements are not satisfied, whether a discretionary sist should be granted under Paragraph 9 of Schedule 3 to the 1973 Act, having regard to the balance of fairness (including convenience) between the parties.
- How the statutory phrase "resided together" should be construed in the context of Paragraph 8(c), and the application of the legal test for "habitual residence" to the facts of the parties' pattern of living.
Arguments of the Parties
Defender's Arguments
- The parties were residing together in The City when the Court A action was begun, such that the place where they last resided together was within the jurisdiction of Court B.
- The Defender was habitually resident in The City throughout the 12 months ending with the date on which the parties last resided together before the Court A action was raised.
- In any event, the balance of fairness and convenience favours the English (Court B) proceedings being taken first, such that a discretionary sist should be granted if mandatory grounds are not made out.
- On statutory interpretation issues the Defender relied on authorities addressing "residence" (including in the context of Article 3 of Brussels II bis) to support a broader approach to the concept of "resided together."
Pursuer's Arguments
- The parties last resided together on 26 September 2024 at Property D (identified in the source as the Scottish cottage) and from that date the parties did not cohabit as husband and wife; the 26 September incident (police involvement and subsequent conduct) marked the last genuine cohabitation.
- Both parties were habitually resident in The Region (the jurisdiction the Pursuer contends is the center of family life) until 26 September 2024, and thus the statutory requirements for a mandatory sist in favour of Court B are not satisfied.
- The Pursuer sought to rely upon Scottish authorities dealing with cessation of cohabitation and argued that "resided together" should be read in that context (entailing more than mere physical presence at the same property).
Table of Precedents Cited
| Precedent (as cited) |
Rule or Principle Cited For |
Application by the Court |
| Authority 1 — [2025] Fam LR 62 |
Where the date on which parties ceased to cohabit is disputed, the court must assess objectively on available evidence; there is no exhaustive checklist and the decision is fact‑sensitive. |
The court applied this approach in determining the factual question of when the parties last resided together, treating the question as one of fact requiring objective evaluation of the available evidence. |
| Authority 2 — [2007] EWHC 2047 (Fam) |
Defines "habitual residence" as the place where someone has established, on a fixed basis, their permanent or habitual centre of interests; context matters (including the place of the matrimonial home). |
The court used this definition as the starting point for its habitual residence analysis, noting the need to take all relevant facts into account and the importance of the family home as a factor. |
| Authority 3 — [2019] WLR 4335 |
Confirms that there is only one habitual residence; the test is qualitative rather than a simple count of days or nights; time spent is relevant but not determinative; a planned move can change habitual residence relatively quickly. |
The court relied on the qualitative character of the test in assessing whether the Defender had established a habitual residence in The City during the relevant 12‑month period. |
| Authority 4 — [2013] UKSC 60 |
Emphasises that the habitual residence inquiry is essentially factual and individual and should not be distorted by legal concepts that would produce a result differing from the factual inquiry. |
The court treated habitual residence as a fact‑sensitive question and resisted importing legal glosses that would displace the factual assessment. |
| Authority 5 — [2007] EWHC 3315 (Fam) |
Describes habitual residence as concerned with the "real focus" of a person's life. |
The court used this as part of its qualitative assessment of where the Defender's centre of interests lay. |
| Authority 6 — 1990 SCLR 692 |
Defines habitual residence as a residence enjoyed voluntarily for the time being with a settled intention that it should continue for some time. |
The court regarded intention and voluntariness as relevant factors in the habitual residence assessment (while noting intention need not be permanent). |
| Authority 7 — 2002 SC 33 |
Accepts habitual residence is a question of fact; to acquire a new habitual residence an appreciable period is normally required; a settled intention to remain for some time is important but need not be permanent. |
The court referenced this to reinforce that duration and intention matter but are considered qualitatively, not mechanically. |
| Authority 8 — [2015] UKSC 35 |
Holds that the stability of residence is important rather than whether it is permanent. |
This assisted the court in focusing on the stability and real focus of the Defender's life rather than on a fixed permanence requirement. |
| Authority 9 — 1988 AC 92 |
Holds that, in discretionary sist cases, the court should adopt the forum non conveniens approach in lis alibi pendens situations; substantial justice in the appropriate forum is decisive and the fact a plaintiff would lose an advantage in the current forum is not decisive. |
The court relied on this principle when explaining the approach to discretionary sist questions (though the mandatory sist determination made application of the discretionary test unnecessary in this case). |
| Authority 10 — 1992 SC 372 |
Explains approach to discretionary sist: consider overall connection of the marriage with the jurisdictions; prima facie connection to a jurisdiction is significant but a sist may still be justified by other circumstances; commencement order dates carry little weight when both actions are at an early stage. |
The court noted these principles in considering the balance of fairness/convenience issue and in framing the correct approach to competing proceedings in different jurisdictions. |
| Authority 11 — Banks (supra) |
States that the ultimate determination of cohabitation questions depends on the particular circumstances of the case and that the parties' subjective intention cannot be determinative. |
The court relied on this proposition in concluding that the factual matrix of the parties' conduct, not their stated intention, controlled the determination of when they last resided together. |
Court's Reasoning and Analysis
The court set out the statutory framework. Paragraph 8 of Schedule 3 to the 1973 Act imposes a duty to sist where certain conditions are satisfied (continuing proceedings in a related jurisdiction; parties have resided together after the marriage; the place where they resided together when the action was begun, or last resided together before the action was begun, is in that jurisdiction; and one of the parties was habitually resident in that jurisdiction throughout the relevant 12‑month period). Paragraph 9 sets out the separate, discretionary basis on which a sist may be granted where the balance of fairness and convenience indicates other proceedings should be disposed of first.
The court recorded that the parties agreed the first two statutory conditions (that proceedings were continuing in another jurisdiction and that the parties had resided together after the marriage) were satisfied; the contested issues were (i) the date and place of the parties' last residence together and (ii) whether either party was habitually resident in the other jurisdiction throughout the 12 months ending with that date. The onus of proof for the sist application lay on the Defender.
Evidence and weight: affidavits were lodged for each witness and most witnesses were available for cross‑examination; one of the Pursuer's witnesses (NJ) was not available for cross‑examination and the court attached limited weight to that affidavit. The court carefully summarised the undisputed factual matrix (the parties' properties, businesses, the surrogacy process, the child's birth in Country B and their travel and residence history in the period between late 2024 and March 2025). The court reproduced a contemporaneous itinerary showing numerous occasions on which both parties were present at Property A (the Fulham house) and at Property D (the cottage), and periods spent abroad.
Credibility and evaluation of disputed matters: the court observed that the parties' evidence differed on the nature and significance of particular episodes (for example, the serious argument and police involvement on 26 September 2024, the extent and pattern of lettings of Property A, precise dates of sexual relations and sleeping arrangements, and the extent to which preparations for family life were focussed on The City rather than The Region). The court found both parties were forceful characters who sought to minimise their own intemperate conduct and to exaggerate the other's. On the balance of the evidence, Judge Tait found the Defender to be the more reliable historian in relation to specific dates, although neither party's evidence was accepted uncritically.
The court identified two competing narratives:
- The Pursuer's account: the parties separated on 26 September 2024 at Property D and did not thereafter resume living together; subsequent interactions represented attempts or hopes of reconciliation rather than a genuine resumption of cohabitation as husband and wife.
- The Defender's account: while arguments and difficult episodes occurred, the parties reconciled after late September 2024 and resumed a pattern of living together (albeit with strains) that continued into March 2025; significant planning and family activity (including arrangements for the newborn child, medical registrations, meetings with designers, social events and bookings) pointed to The City being the practical centre for family life in the period leading up to the Court A action.
Applying the authorities: the court treated the question of last cohabitation and the question of habitual residence as factual, qualitative inquiries (citing the authorities summarised above). Using the approach described in those authorities, the court examined the totality of the evidence (including documentary indicia such as addresses used in parental order paperwork, medical registrations and bookings, witness accounts of the parties' social life and the parties' conduct together in late 2024 and early 2025).
Findings on last residence together: the court accepted that there had been a significant break in cohabitation immediately following the 26 September 2024 incident, but concluded that the parties did reconcile and resumed sharing a pattern of living together as husband and wife from the end of October 2024 until 27 March 2025. The court specifically found that the parties last resided together on 27 March 2025 at Property A (the Fulham house). The court rejected the Pursuer's alternative contention that the last occasion of cohabitation in the sense relied upon was 9 December 2024 in Property D, finding that claim inconsistent with subsequent conduct (sexual relations on several occasions, planning of a family holiday, public affectionate communications, and active involvement by the Defender in the estate project up to March 2025).
Findings on habitual residence: the court applied the qualitative test for habitual residence. It concluded that the Defender had established her habitual residence in The City during the relevant 12‑month period. The court emphasised factors such as the Defender's property ownership in The City, her social and professional connections there, medical and other administrative registrations centred in The City, documentary uses of the Property A address for family legal applications, and her expressed view (accepted by the court) that the properties on the estate were holiday homes rather than her primary base. The court held that the fact that Property A was let on a significant number of short lets did not preclude it from being the parties' home in the relevant sense given the parties' lifestyle and use of multiple comfortable residences.
Conclusion of analysis: on the facts found by the court — and applying the authorities and the statutory tests — the mandatory sist conditions in Paragraph 8 were satisfied because (i) the parties last resided together in The City on 27 March 2025 and (ii) the Defender was habitually resident in The City throughout the preceding 12 months. Consequently, a mandatory sist was appropriate and no further balancing exercise under the discretionary test was required for the court to grant the relief sought.
Holding and Implications
Holding: The court granted the Defender's motion for a mandatory sist. The core ruling may be stated as: MANDATORY SIST GRANTED.
Immediate consequence: the Court A action is sisted pursuant to Paragraph 8 of Schedule 3 to the 1973 Act on the basis that the parties last resided together in The City on 27 March 2025 and that the Defender was habitually resident in The City during the relevant preceding 12‑month period. The court reserved the question of expenses for further consideration.
Broader implications: the opinion applies established authorities on cessation of cohabitation and on the qualitative test for habitual residence to the particular facts of this relationship. The decision turns on the court's factual findings and application of settled tests; the opinion does not purport to author a novel legal principle or to set a broader precedent beyond applying those established tests to the evidence of this case.