Domicile and Matrimonial Proceedings Act 1973

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8 Jurisdiction of sheriff court in respect of actions for separation.S

(1)Subsections (2) to [F1(6)] below shall have effect, subject to section 12(6) of this Act, with respect to the jurisdiction of the sheriff court to entertain—

[F2(za)an action for declarator of marriage;]

[F3(a)]an action for separation [F4or divorce]; F5[F6...

(b)an action for declarator of recognition, or non-recognition, of a relevant foreign decree][F7; and

(c)an action for declarator of nullity of marriage.]

(2)The court shall have jurisdiction to entertain an action for separation [F8or divorce] F9... if (and only if)—

[F10(a)either of the parties to the marriage—

(i)is domiciled in Scotland on the date when the action is begun, or

(ii)was habitually resident in Scotland throughout the period of one year ending with that date, and]

(b)either party to the marriage—

(i)was resident in the sheriffdom for a period of forty days ending with that date, or

(ii)had been resident in the sheriffdom for a period of not less than forty days ending not more than forty days before the said date, and has no known residence in Scotland at that date.

[F11(2ZA)The court has jurisdiction to entertain an action for declarator of marriage if (and only if)—

(a)either party to the marriage—

(i)was resident in the sheriffdom for a period of 40 days ending with the date on which the action is begun, or

(ii)had been resident in the sheriffdom for a period of not less than 40 days ending not more than 40 days before that date, and has no known residence in Scotland on that date, and

(b)any of the following requirements is met in relation to either of the parties to the marriage—

(i)the party is domiciled in Scotland on the date on which the action is begun,

(ii)the party was habitually resident in Scotland throughout the period of one year ending with that date, or

(iii)the party died before that date and either—

(A)was at death domiciled in Scotland, or

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

[F12(2A)The court shall have jurisdiction to entertain an action for declarator of nullity of marriage [F13or for declarator of recognition, or non-recognition, of a relevant foreign decree] if (and only if)—

(a)either party to the marriage—

(i)was resident in the sheriffdom for a period of forty days ending with the date when the action is begun; or

(ii)had been resident in the sheriffdom for a period of not less than forty days ending not more than forty days before that date and has no known residence in Scotland at that date; and

[F14(b)either party to the marriage—

(i)is domiciled in Scotland on the date when the action is begun,

(ii)was habitually resident in Scotland throughout the period of one year ending with that date, or

(ii)died before that date and either–

(A)was at death domiciled in Scotland, or

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

F15(2B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(2C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17(2D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(3)In respect of any marriage, the court shall have jurisdiction to entertain an action for separation [F18or divorce] [F19 or declarator of [F20marriage or of] nullity of marriage] (notwithstanding that jurisdiction would not be exercisable under subsection (2)[F21, (2ZA)] [F22or (2A)] above) if it is begun at a time when an original action is pending in respect of the marriage; and for this purpose “original action” means an action in respect of which the court has jurisdiction by virtue of subsection (2)[F21, (2ZA)], [F23(2A) or] this subsection.

F24(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The foregoing provisions of this section are without prejudice to any jurisdiction of a sheriff court to entertain an action of separation [F25or divorce] [F26 or declarator of [F27marriage or of] nullity of marriage] remitted to it in pursuance of any enactment or rule of court F28....

[F29(5) In this section, “relevant foreign decree” has the meaning given by section 7(9).

(6)References in subsection (2) to a marriage shall, in the case of an action for declarator of recognition, or non-recognition, of a relevant foreign decree, be construed as references to the marriage to which the relevant foreign decree relates.]

Textual Amendments

F1Word in s. 8(1) substituted (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 37(3)(a)(i), 46(2); S.S.I. 2006/212, art. 2 (with art. 4)

F2S. 8(1)(za) inserted (21.5.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 23(2), 36; S.S.I. 2014/121, art. 2(e)

F3Words in s. 8(1) renumbered as paragraph (a) (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 37(3)(a)(ii), 46(2); S.S.I. 2006/212, art. 2 (with art. 4)

F4Words added by Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12, SIF 47), ss. 6(1), 7(4), Sch. 1 para. 18

F5Word in s. 8(1)(a) repealed (28.11.2011) by Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (asp 15), ss. 15(2)(a), 19(2) (with s. 18); S.S.I. 2011/352, art. 2

F6S. 8(1)(b) and preceding word added (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 37(3)(a)(iii), 46(2); S.S.I. 2006/212, art. 2 (with art. 4)

F7S. 8(1)(c) and preceding word inserted (28.11.2011) by Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (asp 15), ss. 15(2)(b), 19(2) (with s. 18); S.S.I. 2011/352, art. 2

F8Words inserted by Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12, SIF 47), ss. 6(1) 7(4), Sch. 1 para. 18(b)

F9Words in s. 8(2) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (S.S.I. 2019/104), reg. 1, sch. 1 para. 1(3)(a)(i) (with reg. 6) (as amended by S.S.I. 2020/441, regs. 1(2)(a), 16); 2020 c. 1, Sch. 5 para. 1(1)

F10S. 8(2)(a) substituted (31.12.2020) by The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (S.S.I. 2019/104), reg. 1, sch. 1 para. 1(3)(a)(ii) (with reg. 6) (as amended by S.S.I. 2020/441, regs. 1(2)(a), 16); 2020 c. 1, Sch. 5 para. 1(1)

F11S. 8(2ZA) inserted (21.5.2014) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), ss. 23(3), 36; S.S.I. 2014/121, art. 2(e)