SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE

 

F150/08

JUDGMENT OF SHERIFF PRINCIPAL

R A DUNLOP QC

 

in the cause

 

ALEXANDER IAN WILLIAMSON

Pursuer and Respondent

 

against

 

KAREN MAY SIMPSON or WILLIAMSON

Defender and Appellant

 

__________________

 

 

Act: Mr Leighton, Advocate, instructed by McKenzies, Solicitors, Kirkcaldy

Alt: Mrs Clark, Solicitor, Edinburgh

 

 

KIRKCALDY, 22 October 2009. The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor of 6 March 2009 complained of; certifies the appeal as suitable for the employment of junior counsel; finds the defender and appellant liable to the pursuer and respondent in the expenses of the appeal; allows an account thereof to be given in and remits the same, when lodged, to the auditor of court to tax and report; remits to the sheriff to proceed as accords.

 

 

 

 

 

NOTE:

[1] This is an action of divorce raised in the sheriff court at Kirkcaldy. The defender contests the jurisdiction of that court but following a preliminary proof on that question the sheriff repelled the defender's plea of no jurisdiction and assigned a hearing on further procedure (reported at 2009 Fam LR 44).The defender has now appealed.

 

[2] The basis of jurisdiction in an action of divorce in Scotland is set out in part 3 of the Domicile and Matrimonial Proceedings Act 1973 as amended (hereinafter referred to as "the 1973 Act"). Section 7 sets out the jurisdiction of the Court of Session and section 8 the jurisdiction of the sheriff court. In terms of both sections it is provided that the court shall have jurisdiction to entertain an action of divorce -

 

"if (and only if) -

(a) the Scottish courts have jurisdiction under the Council Regulation; or

 

(b) the action is an excluded action and either party to the marriage in question is domiciled in Scotland at the date when the action is begun."

 

[3] In relation to the jurisdiction of the sheriff court there is an additional requirement that either party to the marriage "(i) was resident in the sheriffdom for a period of 40 days ending with that date (ie the date when the action was begun), or (b) had been resident in the sheriffdom for a period of not less than 40 days ending not more than 40 days before the said date, and has no known residence in Scotland at that date"- section 8(2)(b).

 

[4] The Council Regulation referred to in both sections 7 and 8 of the 1973 Act is the EC Regulation 2201/2003 concerning Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial Matters, commonly referred to as Brussels II bis. Article 3 of this regulation provides as follows:-

 

"(1) In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the member state

 

(a) in whose territory:

- the spouses are habitually resident, or

- the spouses were last habitually resident, insofar as one of them still resides there, or

- the respondent is habitually resident, or

- in the event of a joint application, either of the spouses is habitually resident, or

- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;

 

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.

 

(2) For the purpose of this regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland."

 

[5] In the present case the pursuer founds on the last sub paragraph of paragraph (1)(a) of Article 3 and accordingly it was necessary for the sheriff to address questions of habitual residence, domicile and whether the pursuer had been resident in Scotland for six months before the action was raised. The sheriff found in favour of the pursuer on each of these component parts of the sub paragraph and, although his decision in relation to each was challenged in the note of appeal, by the time of the appeal hearing no criticism was advanced against it in respect of these matters. Accordingly the only point at issue in the appeal is whether the sheriff was entitled to hold, as he did, that in addition the pursuer was resident in the sheriffdom for a period of 40 days ending with the date on which the action was begun and that therefore the requirements of section 8(2)(b) of the 1973 Act were also satisfied.

 

[6] On this aspect of the case the sheriff's findings in fact make it clear that the pursuer was not physically present within the sheriffdom for the entire period of 40 days immediately preceding the raising of the action on 11 April 2008. The pursuer left Scotland on 9 March 2008 for Spain and returned on 28 March 2008. Accordingly, as the sheriff observes, during the 40 day period the pursuer was exclusively in Spain for eighteen days, travelling on two days and exclusively in Scotland for twenty days. The short proposition advanced on behalf of the defender is that in these factual circumstances it could not be said that the pursuer had been resident in the sheriffdom for a period of 40 days ending with the date on which the action was begun.

 

[7] The sheriff took the view firstly that the word "resident" ought to be given its ordinary and natural meaning and that on that approach the place at which one was resident was one's "ordinary or principal place of residence". Secondly he took the view that one had to construe section 8(2)(b) in the context of Brussels II bis and that, once Scotland had been identified in terms of that European Regulation as the country having jurisdiction, the 40 day rule should be seen as the means of identifying that part of Scotland to which that jurisdiction would devolve. He suggested that "it would be illogical to deprive a litigant from pursuing an action in the sheriff court, as opposed to the Court of Session, due to a domestic regulation which has its historical origins in a different culture and under a different prevailing legal framework". He concluded therefore that the interpretation of "resident" should be consistent with the meaning of that word under the European Regulation, which did not require the person claiming to be resident in a particular country to be physically based there at all times.

 

[8] Counsel for the defender took issue with this approach and submitted that the requirement of section 8(2)(b) of the 1973 Act (which he referred to as "the 40 day rule") was simply a continuation of a ground of jurisdiction under common law and that prior authority explaining the nature and scope of that jurisdiction should be followed in reaching a proper understanding of the provisions of the 1973 Act. In this regard he referred to a number of cases which, according to his submission, supported the view that "residence" meant continuous physical presence within the sheriffdom for the requisite period (Joel v Gill 1859 21D 929, Martin v Szyszka 1943 SC 203, Findlay v Donachie 1944 SC 306, McCord v McCord 1946 SC 198 and McNeill v McNeill 1960 SLT 208). Counsel recognised however that in Ritchie and McCormick v Fraser 1852 15D 205 the court held that there could be interruptions to the continuity of the 40 day period which did not "take off the permanent character of the residence" (see page 208) and which did not therefore undermine the founding of jurisdiction on the ground of 40 days residence. In seeking to reconcile this authority with that of Joel v Gill (upon which the later authorities were substantially based), counsel accepted that there did not require to be an absolute, unbroken, continuous physical presence within the sheriffdom for the entire 40 day period but proposed a test which required "substantially continuous physical presence." When set against that test it was submitted that the extent of the pursuer's presence within the jurisdiction was insufficient and that the jurisdiction of Kirkcaldy sheriff court ought not to have been sustained. He distinguished the various authorities referred to by the sheriff as being concerned with a different test (Daniel v Foster 1989 SCLR 378, Cabel v Cabel 1974 SLT and Casey v Casey 1968 SLT 56).

 

[9] In reply the solicitor for the pursuer submitted that the authorities referred to by counsel were irrelevant to the question of the proper interpretation of the 1973 Act. The primary grounds of jurisdiction were set by the European regulation and related to questions of domicile and habitual residence. By contrast the 40 day rule should be seen as the means of allocating cases satisfactorily to a particular sheriff court within Scotland once those primary grounds of jurisdiction had identified Scotland as the member state having jurisdiction. She submitted that it was clear from the report of the Scottish Law Commission (no.25), from which these statutory provisions were derived, that that was the purpose of section 8(2)(b) - see para.113. She submitted that against this background the sheriff's approach was well founded and that actual physical presence within the sheriffdom continuously throughout the 40 day period was not necessary. What the court required to examine was whether the pursuer had his usual or settled abode within the sheriffdom. In considering whether the 40 day rule was satisfied it was necessary to examine the nature and character of any absences from the sheriffdom during the relevant period to see whether it disturbed the settled nature of the pursuer's abode. This was essentially a matter of fact and degree.

 

[10] In a brief reply counsel for the defender acknowledged that the question whether the 40 day rule was satisfied involved a qualitative examination of the factual circumstances beyond a mere counting of days. He submitted that there were no circumstances justifying recourse to the report of the Scottish Law Commission but that in any event it was clearly implied that the existing interpretation of the 40 day rule was intended to be followed under the new arrangements of the 1973 Act.

 

Discussion

 

[11] In my view, and in agreement with the sheriff, the starting point for the resolution of the present issue is a consideration of the ordinary and natural meaning of the word "resident". The dictionary definition of "reside" includes phrases such as "to settle; to take up one's abode" and "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." These phrases clearly point to a requirement for something more than mere presence at or occupation of a particular place and it is only when such presence or occupation is vested with a particular character that one can properly refer to it as "residence". While the statutory provisions under consideration in Daniel v Foster sup.cit. were different to those in the present case, nevertheless they involved the concept of "residence" as an essential ingredient and in my view the discussion in that case offers a useful illustration of the range of possible factors which might contribute towards that character. What is important to notice however is that it is always necessary to examine the nature and quality of the relevant presence or occupation at a particular place and it is a question of fact and degree whether that presence or occupation can properly be described as "residence." No doubt the duration and regularity of occupation are important factors which contribute to any conclusion of "residence" but they are not the only factors.

 

[12] Looking at the ordinary and natural meaning of the word "reside" I think it is clear that a person may be resident in more than one place and it must follow therefore that continuous and uninterrupted occupation is not a necessary requirement for a finding of "residence". On the other hand there seems little difficulty in concluding that some degree of actual physical occupation of a particular place is necessary before one can be said to reside at that place and the distinction drawn in Findlay v Donachie and McCord v McCord between actual or physical residence and constructive residence is consistent with that.

 

[13] This approach to the meaning of residence accords with that taken in the English High Court case of Marinos v Marinos [2007] EWHC 2047 (Fam) in which the provisions of Article 3 of the European Regulation were closely analysed. While much of the discussion in that case was related to the meaning of "habitual residence" there is a useful discussion of the distinction between that phrase and what might be described as simple residence (see paragraphs 45 to 49). Of particular importance is the court's affirmation of the recognition by the European Court of Justice that it is possible to be resident in more than one country at a time, thus emphasising that temporary absence from a place of occupation does not by itself undermine the character of that occupation as amounting to residence. The sheriff took the same view and held that for the purposes of Article 3 the pursuer was resident in Scotland for the six months preceding the raising of the action notwithstanding that he was absent from Scotland for some of that time. As I have already indicated, this aspect of the sheriff's judgment is not now challenged but for the avoidance of doubt I agree with the sheriff's conclusion.

 

[14] Against that background I now turn to look at the structure of section 8 of the 1973 Act. Section 8(2)(a) effectively involves an incorporation by reference of the entire terms of Article 3 of the European Regulation. Looking at the matter in that way one would naturally expect the use of the word "resident" or "reside" to have a consistent meaning within the four walls of section 8(2) viewed as a whole. Furthermore, to hold otherwise would lead to an odd if not illogical result since it would mean that, although there was residence at a particular place sufficient to confer jurisdiction on the courts of Scotland, the self same residence would be insufficient to confer jurisdiction on the sheriff court in whose district the place of that residence was found. It is not immediately obvious why the legislature would think it appropriate in such circumstances to confer that jurisdiction on the Court of Session to the exclusion of the sheriff court. For that reason alone the sheriff's reasoning has much to commend it and, were one looking at matters without regard to the similarity of language used in section 8(2)(b) and that used to describe the common law ground of jurisdiction (Joel v Gill), I consider that there would be little difficulty in affirming the sheriff's conclusion.

 

[15] Is that conclusion undermined then by the similarity of language argument? The first question is whether there is in reality any inconsistency between the interpretation of section 8(2)(b) adopted by the sheriff and what is properly to be understood as the nature and scope of the so called 40 day rule. I doubt that there is. In Joel v Gill it is clear that the court viewed the question whether someone was "resident" in a particular place as involving a qualitative examination of the circumstances, since a distinction was drawn between continuous residence in one locality and "mere presence within the territory, travelling about and never fixed in any one place." This lends support to the language of the Lord President in Ritchie and McCormick v Fraser when he refers to "the permanent character of the residence". Thus the primary focus of attention was the nature and quality of the presence at or occupation of a particular place, the question being whether the character of that presence or occupation justified the description "residence".

 

[16] I think it is in that context that one should see the comment of the Lord President in Ritchie and McCormick v Fraser that "there are interruptions of continuity which cannot take off the permanent character of the residence." According to the ordinary and natural meaning of the word one does not lose one's "residence" simply because one is temporarily absent from it. However it is equally clear that there might come a point when the absence is of such duration and character that it is lost. Accordingly, when considering the so called 40 day rule, in my view the primary question was whether there was "residence" and the continuity or otherwise of physical presence at a particular place was merely a factor relevant to determining that question. That is plainly a matter of fact and degree and has to be judged by reference to the whole period or periods of occupation of a particular place, including any period of occupation preceding the 40 day period. Once however it is clear that the character of the occupation is such as to justify the description "residence" the requirement of the 40 day rule was that that "residence" must have subsisted during a period of 40 days.

[17] On this analysis therefore I do not consider that there is any fundamental inconsistency between the sheriff's approach to section 8(2)(b) and the authorities to which reference has been made concerning the nature and scope of the 40 day rule. However, if I am wrong about that, I think that any assumption as to the intention of the legislature derived from the use of a familiar form of words in section 8(2)(b) ought to yield to what seems to me to be the normal and natural meaning of section 8 viewed as a whole and with the object and intent of the Act in mind. In this latter regard I think it clear that the purpose of section 8(2)(b) was to allocate cases satisfactorily to the appropriate sheriff court district once the primary grounds of jurisdiction set out in the European Regulation had identified Scotland as the member state having jurisdiction. On any view therefore I think that the sheriff was entitled to hold that the interpretation of "resident" in section 8(2)(b) should be the same as that which applies to the European Regulation.

[18] So far as the factual circumstances were concerned, it was pre-eminently a matter for the sheriff to evaluate those circumstances in deciding whether "residence" had been established for the appropriate periods and in my view I am not entitled to interfere with his conclusion in that regard unless satisfied that he was plainly wrong. Standing the fact that the defender does not challenge the sheriff's conclusion regarding the six month period and since there is no room on the facts to distinguish the character of occupation during the forty day period from that during the six month period, I am satisfied that there is no basis upon which I can properly interfere. Indeed in my opinion the sheriff reached the correct result.

[19] Accordingly I shall refuse the appeal. Parties were agreed that the expenses of the appeal should follow success. The defender's motion for certification of the appeal as suitable for the employment of junior counsel was opposed but in my view is appropriate standing the lack of direct authority on the point at issue and the importance of it.