Summary of Opinion — Judge Tait

Factual and Procedural Background

The parties married in The City on 16 July 2005 and have two children, both born in The State A, aged about 20 and 16. They lived in The State A until 2013, then in The State B, later in The State C, and the Defender came to reside temporarily in The Region from April 2024 on an employment assignment. The Pursuer raised divorce proceedings in the Court of Session on 7 August 2025. The Defender subsequently presented a petition for divorce in The State A on 21 August 2025. The Defender moved to sist the present action in terms of paragraph 9 of Schedule 3 of the Domicile and Matrimonial Proceedings Act 1973 on the basis that proceedings are continuing in another jurisdiction (The State A) and that the balance of fairness favors disposal of those proceedings first. The State A court struck out the Defender's petition on 13 January 2026 on multiplicity grounds; the Defender has lodged an appeal which remains outstanding.

Legal Issues Presented

1. Whether, under paragraph 9 of Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973, the court should exercise its discretion to sist the Scottish divorce action because proceedings in another jurisdiction (The State A) are continuing.
2. If so, whether The State A is the forum with the most real and substantial connection (forum non conveniens / lis alibi pendens analysis) and whether substantial justice would be done there.
3. How factors such as domicile, habitual residence, multiplicity of suits, convenience of witnesses, enforcement of foreign orders, and risks to the Pursuer weigh in the balance of fairness (including convenience).

Arguments of the Parties

Defender's Arguments

• The parties are originally from The State A; the Defender is domiciled there and The State A is therefore a competent forum for divorce.
• The Defender accepts Scottish jurisdiction based on habitual residence but says his residence in The Region was temporary for employment and he has returned to The State A.
• The matrimonial assets are located in The State A, The State B and The State C; there are no relevant assets or witnesses in The Region.
• The Defender contends the Nigerian petition was competent and any procedural defects were curable; The State A is the natural forum and a sist should be granted so The State A proceedings can proceed first.
• Litigating in The Region would be duplicative, expensive and impractical given enforcement and evidential issues with foreign assets and witnesses.

Pursuer's Arguments

• The Region court has jurisdiction and was seised first; the Pursuer disputes the Defender's claimed date of separation and so the Scottish action should proceed to resolve the substantive issues.
• The Defender failed to disclose the Scottish proceedings to The State A court and there are substantial procedural and jurisdictional challenges in The State A, including the strike out and pending appeal.
• The Pursuer fears procedural, logistical and safety difficulties in litigating in The State A and contends there is a real risk of substantial injustice there; remote participation is uncertain.
• The Pursuer says assets and contacts are widely spread and the balance of fairness does not require a sist in favour of The State A.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied paragraph 9 of Schedule 3 to the 1973 Act and the familiar two-stage Spiliada approach as explained in de Dampierre and Mitchell. The court accepted that there were continuing proceedings in The State A and that, prima facie, the marriage had a stronger overall connection with The State A (nationality, place of birth, historic residence, assets and the Defender's domicile). The court therefore proceeded to consider whether there were circumstances by reason of which justice required that The State A should not be the forum.

The court examined evidential material including affidavit evidence from both parties, a solicitor's affidavit (Attorney Duata), and expert opinions on The State A law from each side (Attorney Ibeawuchi and Attorney Etomi). The experts agreed that The State A courts can make financial orders in divorce, consider foreign assets, have procedural mechanisms for remote participation, and have statutory protections addressing domestic violence. The Defender's expert maintained The State A's jurisdiction and competence; the Pursuer's expert and affidavit highlighted concerns about multiplicity of suits, non-disclosure and practical difficulties for the Pursuer.

The court weighed factors relevant to the statutory balance of fairness: locus of assets and witnesses, enforceability of orders, the Defender's domicile and return to The State A, the procedural uncertainty in The State A (strike out and pending appeal), the Pursuer's renunciation of citizenship of The State A but retention of a residency permit, risks asserted by the Pursuer about safety and patriarchal disadvantage, and the availability of remote hearings. The court found the Defender's account of his relocation back to The State A credible (linked to a public company merger and contract cessation) and accepted that many relevant assets and some witnesses would be in The State A; it also accepted expert evidence that The State A has mechanisms to afford protection and procedural fairness.

Weighing these matters, the court was not satisfied that the Pursuer had demonstrated a real risk of substantial injustice in The State A. The court concluded that, on balance, justice and convenience required that the ongoing proceedings in The State A be disposed of before further steps in the present action in The Region.

Holding and Implications

DECISION: The Defender's motion for a discretionary sist is GRANTED.

Implications: The Scottish proceedings are sisted so that the proceedings in The State A may be disposed of before further steps here. The court reserved the question of expenses. The opinion does not purport to establish any novel binding precedent; it applies established forum non conveniens principles and statutory discretion to the facts of this case.