Amendment of the Domicile and Matrimonial Proceedings Act 19732

1

The Domicile and Matrimonial Proceedings Act 19732 is amended in accordance with paragraphs (2) to (5) of this regulation.

2

In section 73–

a

in subsection (2), the words “divorce, separation or ” are repealed;

b

after that subsection, insert–

2A

The Court shall have jurisdiction to entertain an action for divorce or separation if (and only if)–

a

the Scottish courts have jurisdiction under the Council Regulation; or

b

the action is an excluded action and either of the parties to the marriage in question is domiciled in Scotland on the date when the action is begun.

c

in subsection (3), the words “or declarator of nullity of marriage” are repealed;

d

after that subsection, insert–

3A

The Court shall have jurisdiction to entertain an action for declarator of nullity of marriage if (and only if)–

a

the Scottish courts have jurisdiction under the Council Regulation; or

b

the action is one to which subsection (3B) below applies and either of the parties to the marriage–

a

is domiciled in Scotland on the date when the action is begun; or

b

died before that date and either–

i

was at death domiciled in Scotland; or

ii

had been habitually resident in Scotland throughout the period of one year ending with the date of death.

3B

This subsection applies to an action–

a

which is an excluded action; or

b

where one of the parties to the marriage died before the date when the action is begun.

e

in subsection (5)–

i

for “or (3) above”, substitute “, (2A), (3) or (3A) above”; and

ii

for “under subsection (2) or (3)”, substitute “under any of those subsections”;

f

after that subsection, insert–

5A

Subsection (5) does not give the Court jurisdiction to entertain proceedings in contravention of Article 7 of the Council Regulation.

g

in subsection (8), for “subsection (2) or (5) above” substitute “this section”.

3

In section 84–

a

in subsection (2), for paragraph (a) substitute–

a

either–

i

the Scottish courts have jurisdiction under the Council Regulation; or

ii

the action is an excluded action where either party to the marriage in question is domiciled in Scotland at the date when the action is begun;

b

after subsection (3), insert–

3A

Subsection (3) does not give the court jurisdiction to entertain an action in contravention of Article 7 of the Council Regulation.

c

in subsection (4), after “enactment or rule of court” add “, provided that entertaining the action would not contravene Article 7 of the Council Regulation”.

4

In section 105, after subsection (1A) insert–

1B

Subsection (1) above does not give the Court of Session or a sheriff court jurisdiction to entertain an application in proceedings where–

a

the court is exercising jurisdiction in the proceedings by virtue of Article 2 of the Council Regulation; and

b

the making or variation of an order in consequence of the application would contravene Article 7 of the Council Regulation.

5

In section 12, in subsection (5)–

a

the words from “any reference” to the end shall be paragraph (a); and

b

after that paragraph, add–

b

“Contracting State” means Belgium, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Austria, Portugal, Finland, Sweden, and the United Kingdom;

c

“the Council Regulation” means Council Regulation (EC) No. 1347/2000 of 29th May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses6; and

d

“excluded action” means an action in respect of which no court of a Contracting State has jurisdiction under the Council Regulation and the defender is not a person who is–

i

a national of a Contracting State (other than the United Kingdom or Ireland); or

ii

domiciled in Ireland