Matrimonial and Family Proceedings Act 1984

28 Circumstances in which a Scottish court may entertain application for financial provision. S

(1) Where parties to a marriage have been divorced in an overseas country, then, subject to subsection (4) below, if the jurisdiction requirements and the conditions set out in subsections (2) and (3) below respectively are satisfied, the court may entertain an application by one of the parties for an order for financial provision.

(2) The jurisdictional requirements mentioned in subsection (1) above are that—

(a) the applicant was domiciled or habitually resident in Scotland on the date when the application was made; and

(b) the other party to the marriage—

(i) was domiciled or habitually resident in Scotland on the date when the application was made; or

(ii) was domiciled or habitually resident in Scotland when the parties last lived together as husband and wife; or

(iii) on the date when the application was made, was an owner or tenant of, or had a beneficial interest in, property in Scotland which had at some time been a matrimonial home of the parties; and

(c) where the court is the sheriff court, either—

(i) one of the parties was, on the date when the application was made, habitually resident in the sheriffdom; or

(ii) paragraph (b)(iii) above is satisfied in respect of property wholly or partially within the sheriffdom.

(3) The conditions mentioned in subsection (1) above are that—

(a) the divorce falls to be recognised in Scotland;

(b) the other party to the marriage initiated the proceedings for divorce;

(c) the application was made within five years after the date when the divorce took effect;

(d) a court in Scotland would have had jurisdiction to entertain an action for divorce between the parties if such an action had been brought in Scotland immediately before the foreign divorce took effect;

(e) the marriage had a substantial connection with Scotland; and

(f) both parties are living at the time of the application.

(4) Where the jurisdiction of the court to entertain proceedings under this Part of this Act would fall to be determined by reference to the jurisdictional requirements imposed by virtue of Part I of the M1 Civil Jurisdiction and Judgments Act 1982 (implementation of certain European conventions) [F1 or by virtue of Council Regulation (EC) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [F2 , as amended from time to time and as applied by the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJNo. L 299 16.11.2005 at p62)] or] then—

(a) satisfaction of the requirements of subsection (2) above shall not obviate the need to satisfy the requirements imposed by virtue of [F3 that Regulation or] Part I of that Act; and

(b) satisfaction of the requirements imposed by virtue of [F3 that Regulation or] Part I of that Act shall obviate the need to satisfy the requirements of subsection (2) above;

and the court shall entertain or not entertain the proceedings accordingly.

Textual Amendments

F1 Words in s. 28(4) inserted (1.3.2002) by S.I. 2001/3929, arts. 1(b), 5, Sch. 3 para. 20(a)

F2 Words in s. 28(4) inserted (1.7.2007) by The Civil Jurisdiction and Judgments Regulations 2007 (S.I. 2007/1655), reg. 1, Sch. para. 14

F3 Words in s. 28(4)(a)(b) inserted (1.3.2002) by S.I. 2001/3929, arts. 1(b), 5, Sch. 3 para. 20(b)

Marginal Citations

M1 1982 c. 27.