- Latest available (Revised)
- Original (As made)
There are currently no known outstanding effects for the The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.
Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.
Scottish Statutory Instruments
Exiting The European Union
Family Law
Judgments
Children And Young Persons
Made
19th March 2019
Coming into force in accordance with regulation 1
The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraphs 1(1) and (3) of schedule 2, and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 2018 M1 and all other powers enabling them to do so.
In accordance with paragraph 4(b) of schedule 2 of that Act, they have consulted with the Secretary of State.
In accordance with paragraph 1(7) of schedule 7 of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.
1. These Regulations may be cited as the Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 and come into force on exit day.
Commencement Information
I1Reg. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
2. In these Regulations—
“Council Regulation No. 2201/2003” means Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, and
“competent authority” means the Court of Session or the sheriff court as appropriate.
Commencement Information
I2Reg. 2 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
3. Council Regulation No. 2201/2003 is revoked.
Commencement Information
I3Reg. 3 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
4. Schedule 1 has effect.
Commencement Information
I4Reg. 4 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
5. Schedule 2 has effect.
Commencement Information
I5Reg. 5 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
6. Nothing in these Regulations affects the application of paragraphs 1, 2(b) and 3(a) of Article 67 of the withdrawal agreement and legislation amended or revoked by these Regulations continues to have effect for the purposes of those paragraphs as if the amendments and revocations had not been made.]
Textual Amendments
F1Reg. 6 substituted (31.12.2020 immediately before IP completion day) by The Civil and Family Justice (EU Exit) (Scotland) (Amendment etc.) Regulations 2020 (S.S.I. 2020/441), regs. 1(2)(a), 16
Commencement Information
I6Reg. 6 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Ash Denham
Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
Regulation 4
1.—(1) The Domicile and Matrimonial Proceedings Act 1973 M2 is amended as follows.
(2) In section 7 M3 (jurisdiction of Court of Session)—
(a)in subsection (2A)—
(i)after “if (and only if)”, insert “ either of the parties to the marriage ”, and
(ii)for paragraphs (a) and (b) substitute—
“(a)is domiciled in Scotland on the date when the action is begun, or
(b)was habitually resident in Scotland throughout the period of one year ending with that date.”,
(b)in subsection (3A)—
(i)after “if (and only if)” insert “ either of the parties to the marriage ”,
(ii)omit the first paragraphs (a) and (b),
(iii)for the second paragraphs (a) and (b) substitute—
“(a)is domiciled in Scotland on the date when the action is begun,
(b)was habitually resident in Scotland throughout the period of one year ending with that date, or
(c)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.”,
(c)omit subsection (3B),
(d)omit subsection (5A), and
(e)in subsection (9) for “a member state of the European Union” substitute “ the United Kingdom, the Channel Islands and the Isle of Man ”.
(3) In section 8 M4 (jurisdiction of sheriff court in respect of actions for separation)—
(a)in subsection (2)—
(i)omit “or for declarator of recognition, or non-recognition, of a relevant foreign decree”,
(ii)for paragraph (a) substitute—
“(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)in subsection (2A)—
(i)after “marriage” where it first occurs insert “ or for declarator of recognition, or non-recognition, of a relevant foreign decree ”,
(ii)for paragraph (b) substitute—
“(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.”,
(c)omit subsections (2B), (2C) and (2D),
(d)omit subsection (3A), and
(e)in subsection (4) omit “, provided that entertaining the action would not contravene Article 6 of the Council Regulation”.
(4) In section 10 M5 (ancillary and collateral orders) omit subsections (1B) M6 and (1BA) M7.
(5) In section 11 M8 (sisting of certain actions) omit subsection (2).
(6) In section 12 M9 (supplementary), in subsection (5) omit paragraphs (b) to (d).
(7) In schedule 1B (jurisdiction in relation to same sex marriages (Scotland)) M10—
(a)in paragraph 1(3), in the definition of “relevant foreign decree” for “a member State” substitute “ the United Kingdom, the Channel Islands and the Isle of Man ”,
(b)omit paragraph 2 (power to make provision corresponding to EC Regulation 2201/2003),
(c)in paragraph 3 (divorce or separation)—
(i)in sub-paragraph (1), after “if (and only if)” insert “ either of the parties to the marriage ”,
(ii)for sub-paragraph (1)(a) and (b), substitute—
“(a)is domiciled in Scotland on the date when the proceedings are begun, or
(b)was habitually resident in Scotland throughout the period of one year ending with that date.”, and
(iii)in sub-paragraph (3)(b), omit “under regulations under paragraph 2”,
(d)in paragraph 5 (nullity of marriage)—
(i)in sub-paragraph (1)—
(aa)omit from beginning of head (a) to “those regulations and”,
(bb)in sub-head (i), after “proceedings are begun”, insert “ , or was habitually resident in Scotland throughout the period of one year ending with that date ”,
(ii)in sub-paragraph (2), in head (a), omit “paragraph (a) or (b) of”,
(iii)in sub-paragraph (3), in head (b), omit “under regulations under paragraph 2”,
(e)in paragraph 6 (recognition, or non-recognition, of foreign decrees)—
(i)in sub-paragraph (1)—
(aa)omit from beginning of head (a) to “those regulations and”,
(bb)in sub-head (i), after “proceedings are begun”, insert “ , or was habitually resident in Scotland throughout the period of one year ending with that date ”,
(ii)in sub-paragraph (2), in head (a), omit “paragraph (a) or (b) of”, and
(f)in paragraph 7 (supplementary provision), in sub-paragraph (2), omit “, if entertaining the proceedings would not contravene regulations under paragraph 2”.
Commencement Information
I7Sch. 1 para. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
M3Section 7 was amended by the Presumption of Death (Scotland) Act 1977, (c.27), section 19 and schedule 2, the Family Law (Scotland) Act 2006, (asp 2), section 37(2) and schedule 2, paragraph 1, S.S.I. 2001/36 and S.S.I. 2005/42.
M4Section 8 was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c.12), sections 6(1), 7(4) and schedule 1, paragraph 18, the Family Law (Scotland) Act 2006, (asp 2), section 37(3), the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, (asp 15), section 15, the Marriage and Civil Partnership (Scotland) Act 2014, (asp 5), section 23, S.S.I. 2001/36 and S.S.I. 2005/42.
M5Section 10 was amended by the Children (Scotland) Act 1995, (c.36), schedule 4, paragraph 20(2), S.I. 2011/1484 and is amended by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/ .
M6Subsection (1B) was added by S.S.I. 2001/36 and amended by S.S.I. 2005/42.
M7Subsection (1BA) was added by the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), schedule 1, paragraph 1(3).
M8Section 11 was amended by S.S.I. 2005/42.
M9Section 12 was amended by S.S.I. 2001/36 and S.S.I. 2005/42.
M10Schedule 1B was inserted by the Marriage and Civil Partnership (Scotland) Act 2014, (asp 5), schedule 1, paragraph 1(4).
2.—(1) The Family Law Act 1986 M11 is amended as follows.
(2) In section 14 M12 (power of court to refuse application or sist proceedings) in subsection (2)—
(a)at the end of paragraph (b) insert “ or ”,
(b)omit paragraph (c), and
(c)in the words following paragraph (d), omit “Article 15 of the Council Regulation or” and “of the Council Regulation”.
(3) In section 15 M13 (duration, variation and recall of orders) in subsection (1)(b) omit “or by virtue of the Council Regulation”.
(4) In section 17A M14, omit “Sections 2 and 3 of Chapter II of the Council Regulation and are subject to”.
(5) In section 26 M15 (recognition: special Scottish rule), omit subsection (2).
(6) In section 42 M16 (general interpretation of Part 1), in subsection (1), omit the definition of “the Council Regulation”.
(7) In section 45 M17 (recognition in the United Kingdom of overseas divorces, annulments and legal separations)—
(a)in subsection (1) omit “subsection (2) of this section and to”, and
(b)omit subsection (2).
(8) In section 54 M18 (interpretation of Part 2), in subsection (1), omit the definition of “the Council Regulation”.
Commencement Information
I8Sch. 1 para. 2 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
M12Section 14 was amended by the Children Act 1989 (c.41), schedule 13, paragraph 62(2)(a), S.S.I. 2005/42 and S.S.I. 2010/213.
M13Section 15 was amended by the Children Act 1989 (c.41), schedule 13, paragraph 62(2)(a), the Children (Scotland) Act 1995 (c.36), schedule 4, paragraph 41(4) and schedule 5, paragraph 1 and S.S.I. 2001/36.
M14Section 17A was inserted by S.S.I. 2005/42 and amended by S.S.I. 2010/213.
M15Section 26(2) was inserted by S.S.I. 2001/36 and amended by S.S.I. 2005/42.
M16Section 42 was amended by S.S.I. 2005/623 and S.S.I. 2010/213.
M17Section 45 was amended by S.I. 2001/310 and S.I. 2005/265.
M18The definition in section 54(1) was inserted by S.S.I. 2005/42.
3. In section 14 of the Children (Scotland) Act 1995 M19 (jurisdiction and choice of law in relation to certain matters), omit subsection (5).
Commencement Information
I9Sch. 1 para. 3 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
M191995 c.36, section 14(5) was added by S.S.I. 2005/42.
4.—(1) The Civil Partnership Act 2004 M20 is amended as follows.
(2) Omit section 219 (power to make provision corresponding to EC Regulation 2201/2003).
(3) In section 225 (jurisdiction of Scottish courts)—
(a)in subsection (1)—
(i)after “if (and only if)” insert “ either civil partner ”,
(ii)for paragraphs (a) and (b), substitute—
“(a)is domiciled in Scotland on the date when proceedings are begun, or
(b)was habitually resident in Scotland throughout the period of one year ending with that date, or”, and
(iii)in paragraph (c)(ii) omit “under section 219 regulations”,
(b)in subsection (3)—
(i)for paragraphs (a) and (b) substitute—
“(a)either of the ostensible civil partners—
(i)is domiciled in Scotland on the date when the proceedings are begun or was habitually resident in Scotland throughout the period of one year ending with that date, or
(ii)died before that date and either was at death domiciled in Scotland or had been habitually resident in Scotland throughout the period of one year ending with the date of death, or”,
(ii)in paragraph (c)(ii) omit “under section 219 regulations”.
(4) In section 227 M21 (Scottish ancillary and collateral orders)—
(a)in subsection (3), for “Subject to subsection (3A) if”, substitute “ If ”,
(b)omit subsection (3A).
(5) In section 234 (recognition in the UK of overseas dissolution, annulment or separation)—
(a)in subsection (1)—
(i)for “Subject to subsection (2), the”, substitute “ The ”, and
(ii)for “the United Kingdom” substitute “ Scotland ”,
(b)omit subsection (2), and
(c)in subsection (3), for “subsections (1) and (2)”, substitute “ subsection (1) ”.
Commencement Information
I10Sch. 1 para. 4 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
M21Section 227 was amended by S.I. 2011/1484 and is amended by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 S.I. 2019/ .
Regulation 5
1. The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 M22 are revoked.
Commencement Information
I11Sch. 2 para. 1 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
2. The Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005 M23 are revoked.
Commencement Information
I12Sch. 2 para. 2 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
3.—(1) The Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010 M24 are amended as follows.
(2) In regulation 2 M25 (interpretation), omit the definitions of “the Council Regulation” and “member State”.
(3) Omit regulation 6 (application of Article 15).
(4) Omit regulation 10 M26 (requests for information under Council Regulation).
(5) In regulation 12 M27 (local authorities and Children's Hearings: placement of child in another Contracting State)—
(a)in paragraph (1)—
(i)in sub-paragraph (a), omit “, or”, and
(ii)omit sub-paragraph (b),
(b)in paragraph (2)—
(i)in sub-paragraph (a), omit “, or”, and
(ii)omit sub-paragraph (b), and
(c)in paragraph (3)—
(i)omit “or Articles 8 to 14 of the Council Regulation, as the case may be”,
(ii)in sub-paragraph (a) omit “, or”, and
(iii)omit sub-paragraph (b).
Commencement Information
I13Sch. 2 para. 3 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
M25Regulation 2 was amended by S.S.I. 2013/147.
M26Regulation 10 was amended by S.S.I. 2013/147 and S.S.I. 2011/211.
M27Regulation 12 was amended by S.S.I. 2013/147.
4. The Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014 M28 are revoked.
Commencement Information
I14Sch. 2 para. 4 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1
Marginal Citations
(This note is not part of the Regulations)
These Regulations are made in exercise of the powers conferred by paragraphs 1(1) and (3) of schedule 2 and paragraph 21(b) of schedule 7 of the European Union (Withdrawal) Act 2018 in order to address failures of retained EU law to operate effectively and other deficiencies in retained EU law (in particular to address reciprocal arrangements which no longer exist and are no longer appropriate) arising from the withdrawal of the UK from the European Union.
Regulation 3 revokes Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility which is retained direct EU legislation in terms of the 2018 Act. Regulation 4 and schedule 1 amend primary legislation and regulation 5 and schedule 2 revoke and amend secondary legislation, in both cases to reflect the revocation of the Council Regulation. The legislation amended relates to jurisdiction and recognition of judgments in matrimonial matters for opposite and same sex couples and for civil partners. Regulation 6 makes saving and transitional provision for matters arising before exit day.
The Scottish Government has prepared for these Regulations and is publishing on its website, a Business and Regulatory Impact Assessment, an Equality Impact Assessment and a Child Rights and Wellbeing Impact Assessment.
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Policy Note sets out a brief statement of the purpose of a Scottish Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Scottish Statutory Instrument accessible to readers who are not legally qualified and accompany any Scottish Statutory Instrument or Draft Scottish Statutory Instrument laid before the Scottish Parliament from July 2012 onwards. Prior to this date these type of notes existed as ‘Executive Notes’ and accompanied Scottish Statutory Instruments from July 2005 until July 2012.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: