Jurisdiction is the question of whether a court will be prepared to hear the parties' case. Theoretically, a court could agree to hear any case brought before it. Having rules of jurisdiction is therefore self-limiting but for a good reason. Why should a Scottish court hear a case involving two people from China, Australia or Canada, when the parties have absolutely no connection with Scotland? To that extent, the rules have a strong element of common sense. I always ask myself, does this case have any connection at all with Scotland (or England) before then working through the complexities of the rules.
The rules relating to jurisdiction are complicated, especially when the parties have a relatively weak connection with a country or, as many international families are nowadays, living in different places at the same time. If a party raises an action in the wrong court it can result in an expensive argument and thousands of pounds of wasted costs.
In fact, working out whether a court has jurisdiction can be one of the most difficult and important issues in a case. There are a myriad of important concepts that need to be understood including domicile and habitual residence. Where parties can raise in a number of countries, international family lawyers need to be acutely aware of the risks of holding off, especially when we consider the vital importance of thinking about mediation and negotiation in family law cases. This is because of the European principle of lis alibi pendens (also known as the first-past-the-post rule). If a court action is already pending in another European county, the Scottish courts are obligated to pause their proceedings.
Although totally different concepts, restrictions on jurisdiction also have an important impact on the recognition and enforcement of judgements. What is the point of a court adjudicating on an issue if their judgement won't be recognised by the courts of the parties' country of residence? I should think that a Chinese, Australian or Canadian court would be very reluctant to give recognition to a Scottish court decision if neither of the parties had any connection with Scotland. One of the worst outcomes in an international family law dispute is a marriage which is ended by courts in one country, but due to a refusal to recognise the divorce judgement, is technically still subsisting in the other.
One of the ways round the rules of jurisdiction is for a party to move to a country for the purposes of obtaining a favourable divorce. This is sometimes called "forum-shopping". Although the term has negative undertones there are often situations where parties had a strong connection with a country in the past but moved away from it. For example, sometimes the only link the parties have with their current place of residence is work. That doesn't mean they haven't orientated their life around that country. So, where the courts in the place they are originally from require habitual residence in the jurisdiction to consider their divorce and their related financial matters, it can sometimes make sense for one of the parties to move back there.
One of the reasons why jurisdiction is so vital in cases involving the English and Scottish courts is that our courts tend to only apply their own law when considering divorce and the related financial matters. I will cover the complicated and controversial issue of "applicable law" in my next blog.