40 days and 40 nights

All family lawyers know that to found jurisdiction in the sheriff court, either or both parties must, put shortly, be resident in the sheriffdom for a period of 40 days ending with the date when the action is begun. But what does that provision actually mean? Perhaps surprisingly, there has been no case law on the point since the Domicile and Matrimonial Proceedings Act 1973 came into force, until the recent case of Williamson v Williamson (reported at first instance at 2009 Fam LR 44). The defender subsequently appealed to the sheriff principal.

Question on appeal

The only issue argued on appeal was whether the sheriff was entitled to hold that the pursuer was resident in the sheriffdom for the 40 day period. However, the sheriff principal helpfully noted obiter that he was in agreement with the remainder of the sheriff’s judgment, which dealt with the more influential issue of whether the pursuer was habitually resident and resident for the past six months within Scotland, in terms of article 3 of the Brussels II-bis Regulation.

It was a matter of agreement that the pursuer was not physically present within the sheriffdom for the entire 40 days. Instead, he had been exclusively in Spain (where the parties owned a second home) for 18 days, travelling for two days, and exclusively in Scotland for 20 days.

The defender argued that in these circumstances, the pursuer’s residence within the jurisdiction was insufficient. Instead, the appropriate test should be a “substantially continuous physical presence”, following the dicta of Joel v Gill (1859) 21D 929 and other cases relating to the 40 day rule under the pre-1973 law. The pursuer argued that these older authorities were irrelevant to interpretation of the 1973 Act, failing which that they were consistent with the sheriff’s approach.

Consistency of interpretation

Sheriff Principal Dunlop dismissed the appeal. He held, in agreement with the sheriff, that the starting point should be consideration of the ordinary and natural meaning of “resident”. The dictionary definitions point to a requirement for something more than mere presence, but less than continuous and uninterrupted occupation. It is a question of fact and degree whether that presence or occupation can properly be described as “residence”. In light of this, the sheriff principal held that it was clear that a person could be resident in more than one place.

One important issue is the interaction between article 3 (which determines whether Scotland has jurisdiction) and s 8(2)(b) of the Act (which determines whether a particular sheriffdom has jurisdiction under the 40 day rule). The sheriff principal held that it would be “an odd if not illogical result” if residence within a sheriffdom was sufficient to confer jurisdiction on the Scottish courts in terms of the Brussels Regulation, but insufficient to confer jurisdiction on the sheriff courts of that place in terms of the Act. The sheriff was therefore entitled to hold that the interpretation of “resident” for the 40 day rule should be the same as that which applies to the Regulation.

In the sheriff principal’s view, there was no fundamental inconsistency between the sheriff’s approach and the case authorities referred to by the appellant. The primary focus of these cases was the nature and quality of the occupation of a particular place, the question being whether the character of that occupation justified the description “residence”. A temporary absence was not fatal to this. The sheriff principal went on to note that if he was wrong about this, the wording in the 1973 Act should be given its “normal and natural meaning… and with the object and intent of the Act in mind”. The purpose of s 8 was to allocate cases satisfactorily to the appropriate sheriff court district, once the primary grounds of jurisdiction set out in the Regulation had identified Scotland as the member state having jurisdiction.

Fact and degree

What implications does this have for future cases? It has been helpfully clarified that a temporary absence from the sheriffdom is not sufficient to lose jurisdiction (although this is a matter of fact and degree, and there may come a point where occupation is no longer sufficient to be classed “residence”). In addition, it is possible that a party could have more than one residence, which may in some cases offer a choice between sheriffdoms.

If, on the other hand, the appellant had been successful, it is likely that more cases would have had to be raised in the Court of Session, as a temporary absence from the sheriffdom during the 40 day period would result in the sheriff court losing jurisdiction. This might have resulted in more work for practitioners in Edinburgh, but would perhaps not have been a satisfactory result for prospective litigants, or in line with the recommendations of the Gill Report.