Family Law Act 1986

13 Jurisdiction ancillary to matrimonial proceedings.

(1) The jurisdiction of a court in Scotland to entertain an application for a custody order in matrimonial proceedings shall be modified by the following provisions of this section.

(2) A court in Scotland shall not have jurisdiction, after the dismissal of matrimonial proceedings or after decree of absolvitor is granted therein, to entertain an application for a custody order under section 9(1) of the [1958 c. 40.] Matrimonial Proceedings (Children) Act 1958 unless the application therefor was made on or before such dismissal or the granting of the decree of absolvitor.

(3) Where, after a decree of separation has been granted, an application is made in the separation process for a custody order, a court in Scotland shall not have jurisdiction to entertain that application if, on the date of the application, proceedings for divorce or nullity of marriage in respect of the marriage concerned are continuing in another court in the United Kingdom.

(4) A court in Scotland shall not have jurisdiction to entertain an application for the variation of a custody order made under section 9(1) of the Matrimonial Proceedings (Children) Act 1958 if, on the date of the application, matrimonial proceedings in respect of the marriage concerned are continuing in another court in the United Kingdom.

(5) Subsections (3) and (4) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 4(5) or 21(5) of this Act or under subsection (6) below (not being an order made by virtue of paragraph (a)(ii) of that subsection), or

(b) an order under section 5(2), 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling proceedings with respect to the custody of the child concerned to be taken in Scotland or, as the case may be, in another court in Scotland,

and that order is in force.

(6) A court in Scotland which has jurisdiction in matrimonial proceedings to entertain an application for a custody order with respect to a child may make an order declining such jurisdiction if—

(a) it appears to the court with respect to that child that—

(i) but for section 11(1) of this Act, another court in Scotland would have jurisdiction to entertain an application for a custody order, or

(ii) but for section 3(2), 6(3), 20(2) or 23(3) of this Act, a court in another part of the United Kingdom would have jurisdiction to make a custody order or an order varying a custody order; and

(b) the court considers that it would be more appropriate for matters relating to the custody of that child to be determined in that other court or part.

(7) The court may recall an order made under subsection (6) above.