The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019

Scottish Statutory Instruments

2019 No. 104

Exiting The European Union

Family Law

Judgments

Children And Young Persons

The Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019

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(1) 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.

PART 1 Introduction

Citation and commencement

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.

Interpretation

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.

PART 2 Revocation of retained direct EU legislation

Revocation of Council Regulation No. 2201/2003

3.  Council Regulation No. 2201/2003 is revoked.

PART 3 Amendment of primary legislation

Amendment of primary legislation

4.  Schedule 1 has effect.

PART 4 Revocation and amendment of secondary legislation

Revocation and amendment of secondary legislation

5.  Schedule 2 has effect.

PART 5 Saving and transitional provisions

Saving and transitional provisions

6.—(1) The amendments and revocations made by these Regulations do not apply in relation to—

(a) proceedings before a court in a Member State seised before these Regulations come into force in reliance upon the provisions of Chapter II (jurisdiction) of Council Regulation No. 2201/2003,

(b) applications, requests for assistance or specific measures, where the application or request is received by the Scottish Ministers as the relevant Central Authority or where the competent authority is seised before these Regulations come into force, in accordance with Chapter III (recognition and enforcement) or Chapter IV (cooperation between Central Authorities in matters of parental responsibility) of Council Regulation No. 2201/2003,

(c) proceedings commenced before these Regulations come into force pursuant to the jurisdiction provisions of Part 1 of—

(i) the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005(2), or

(ii) the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014(3),

(d) proceedings commenced before these Regulations come into force in accordance with the recognition and refusal of recognition provisions of Part 2 of—

(i) the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005, or

(ii) the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014.

(2) For the purposes of sub-paragraphs (1)(a) and (b) of this regulation—

(a) a court is seised—

(i) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have service effected on the respondent, or

(ii) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have the document lodged with the court, and

(b) references to “Member State” in Council Regulation No. 2201/2003 and any implementing legislation are to be read as including the United Kingdom.

Ash Denham

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

19th March 2019

Regulation 4

SCHEDULE 1 Amendment of primary legislation

Amendment of the Domicile and Matrimonial Proceedings Act 1973

1.—(1) The Domicile and Matrimonial Proceedings Act 1973(4) is amended as follows.

(2) In section 7(5) (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(6) (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(7) (ancillary and collateral orders) omit subsections (1B)(8) and (1BA)(9).

(5) In section 11(10) (sisting of certain actions) omit subsection (2).

(6) In section 12(11) (supplementary), in subsection (5) omit paragraphs (b) to (d).

(7) In schedule 1B (jurisdiction in relation to same sex marriages (Scotland))(12)—

(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”.

Amendment of the Family Law Act 1986

2.—(1) The Family Law Act 1986(13) is amended as follows.

(2) In section 14(14) (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(15) (duration, variation and recall of orders) in subsection (1)(b) omit “or by virtue of the Council Regulation”.

(4) In section 17A(16), omit “Sections 2 and 3 of Chapter II of the Council Regulation and are subject to”.

(5) In section 26(17) (recognition: special Scottish rule), omit subsection (2).

(6) In section 42(18) (general interpretation of Part 1), in subsection (1), omit the definition of “the Council Regulation”.

(7) In section 45(19) (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(20) (interpretation of Part 2), in subsection (1), omit the definition of “the Council Regulation”.

Amendment of the Children (Scotland) Act 1995

3.  In section 14 of the Children (Scotland) Act 1995(21) (jurisdiction and choice of law in relation to certain matters), omit subsection (5).

Amendment of the Civil Partnership Act 2004

4.—(1) The Civil Partnership Act 2004(22) 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(23) (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)”.

Regulation 5

SCHEDULE 2 Revocation and amendment of secondary legislation

Revocation of the European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005

1.  The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005(24) are revoked.

Revocation of the Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005

2.  The Civil Partnership (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005(25) are revoked.

Amendment of the Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010

3.—(1) The Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010(26) are amended as follows.

(2) In regulation 2(27) (interpretation), omit the definitions of “the Council Regulation” and “member State”.

(3) Omit regulation 6 (application of Article 15).

(4) Omit regulation 10(28) (requests for information under Council Regulation).

(5) In regulation 12(29) (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).

Revocation of the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014

4.  The Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2014(30) are revoked.

EXPLANATORY NOTE

(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.

(1)

2018 c.16.

(2)

S.S.I. 2005/629.

(3)

S.S.I. 2014/362.

(4)

1973 c.45.

(5)

Section 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.

(6)

Section 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.

(7)

Section 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/    .

(8)

Subsection (1B) was added by S.S.I. 2001/36 and amended by S.S.I. 2005/42.

(9)

Subsection (1BA) was added by the Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), schedule 1, paragraph 1(3).

(10)

Section 11 was amended by S.S.I. 2005/42.

(11)

Section 12 was amended by S.S.I. 2001/36 and S.S.I. 2005/42.

(12)

Schedule 1B was inserted by the Marriage and Civil Partnership (Scotland) Act 2014, (asp 5), schedule 1, paragraph 1(4).

(13)

1986 c.55.

(14)

Section 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.

(15)

Section 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.

(16)

Section 17A was inserted by S.S.I. 2005/42 and amended by S.S.I. 2010/213.

(17)

Section 26(2) was inserted by S.S.I. 2001/36 and amended by S.S.I. 2005/42.

(18)

Section 42 was amended by S.S.I. 2005/623 and S.S.I. 2010/213.

(19)

Section 45 was amended by S.I. 2001/310 and S.I. 2005/265.

(20)

The definition in section 54(1) was inserted by S.S.I. 2005/42.

(21)

1995 c.36, section 14(5) was added by S.S.I. 2005/42.

(22)

2004 c.33.

(23)

Section 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/    .

(24)

S.S.I. 2005/42.

(25)

S.S.I. 2005/629.

(26)

S.S.I. 2010/213.

(27)

Regulation 2 was amended by S.S.I. 2013/147.

(28)

Regulation 10 was amended by S.S.I. 2013/147 and S.S.I. 2011/211.

(29)

Regulation 12 was amended by S.S.I. 2013/147.

(30)

S.S.I. 2014/362.