Domicile and Matrimonial Proceedings Act 1973

Part I U.K. DOMICILE

Husband and wife U.K.

1 Abolition of wife’s dependent domicile. U.K.

(1) Subject to subsection (2) below, the domicile of a married woman as at any time after the coming into force of this section shall, instead of being the same as her husband’s by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where immediately before this section came into force a woman was married and then had her husband’s domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not also her domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the coming into force of this section.

(3) This section extends to England and Wales, Scotland and Northern Ireland.

2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1 U.K.

Textual Amendments

F1 S. 2 repealed by Family Law Act 1986 (c. 55, SIF 49:3), s. 68(2), Sch. 2

Minors and pupils U.K.

3 Age at which independent domicile can be acquired. U.K.

(1) The time at which a person first becomes capable of having an independent domicile shall be when he attains the age of sixteen or marries under that age; and in the case of a person who immediately before 1st January 1974 was incapable of having an independent domicile, but had then attained the age of sixteen or been married, it shall be that date.

(2) This section extends to England and Wales and Northern Ireland (but not to Scotland).

4 Dependent domicile of child not living with his father. U.K.

(1) Subsection (2) of this section shall have effect with respect to the dependent domicile of a child as at any time after the coming into force of this section when his father and mother are alive but living apart.

(2) The child’s domicile as at that time shall be that of his mother if—

(a) he then has his home with her and has no home with his father; or

(b) he has at any time had her domicile by virtue of paragraph (a) above and has not since had a home with his father.

(3) As at any time after the coming into force of this section, the domicile of a child whose mother is dead shall be that which she last had before she died if at her death he had her domicile by virtue of subsection (2) above and he has not since had a home with his father.

(4) Nothing in this section prejudices any existing rule of law as to the cases in which a child’s domicile is regarded as being, by dependence, that of his mother.

(5) In this section, “child” means a person incapable of having an independent domicile; . . . F2

(6) This section extends to England and Wales, Scotland and Northern Ireland.

Textual Amendments

F2 Words repealed by SI 1987/2203, art. 72(3), Sch. 5 Pt. I

Part II E+W JURISDICTION IN MATRIMONIAL PROCEEDINGS (ENGLAND AND WALES)

5 Jurisdiction of High Court and county courts. E+W

(1) Subsections (2) to (5) below shall have effect, subject to section 6(3) and (4) of this Act, with respect to the jurisdiction of the court to entertain—

(a) proceedings for divorce, judicial separation or nullity of marriage; and

(b) proceedings for death to be presumed and a marriage to be dissolved in pursuance of section 19 of the M1 Matrimonial Causes Act 1973;

and in this Part of this Act “the court” means the High Court and a divorce county court within the meaning of [F3 Part V of the Matrimonial and Family Proceedings Act 1984].

(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage—

(a) is domiciled in England and Wales on the date when the proceedings are begun; or

(b) was habitually resident in England and Wales throughout the period of one year ending with that date.

(3) The court shall have jurisdiction to entertain proceedings for nullity of marriage if (and only if) either of the parties to the marriage—

(a) is domiciled in England and Wales on the date when the proceedings are begun; or

(b) was habitually resident in England and Wales throughout the period of one year ending with that date; or

(c) died before that date and either—

(i) was at death domiciled in England and Wales, or

(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.

(4) The court shall have jurisdiction to entertain proceedings for death to be presumed and a marriage to be dissolved if (and only if) the petitioner—

(a) is domiciled in England and Wales on the date when the proceedings are begun; or

(b) was habitually resident in England and Wales throughout the period of one year ending with that date.

(5) The court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of subsection (2) or (3) above (or of this subsection), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, notwithstanding that jurisdiction would not be exercisable under subsection (2) or (3).

(6) Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule—

(a) requires or authorises a stay of proceedings which are pending when this section comes into force; or

(b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.

Textual Amendments

F3 Words substituted by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss.46(1), 48(3), Sch. 1 para. 17

Marginal Citations

M1 1973 c. 18

6 Miscellaneous amendments, transitional provision and savings. E+W

(1) In section 27(2) of the M2 Matrimonial Causes Act 1973 (which excludes the court’s jurisdiction on a maintenance application unless it would have jurisdiction to decree judicial separation), for the words from “unless” onwards there shall be substituted the words “unless—

(a) the applicant or the respondent is domiciled in England and Wales on the date of the application ; or

(b) the applicant has been habitually resident there throughout the period of one year ending with that date; or

(c) the respondent is resident there on that date.”

(2) In subsection (1) of section 50 of the Matrimonial Causes Act 1973 (scope of the Matrimonial Causes Rules), the word “or” at the end of paragraph (c) shall be omitted and after paragraph (d) there shall be inserted the following words “or

(e) any enactment contained in Part II of or Schedule I to the Domicile and Matrimonial Proceedings Act 1973 which does not fall within paragraph (d) above.”

(3) No proceedings for divorce shall be entertained by the court by virtue of section 5(2) or (5) of this Act while proceedings for divorce or nullity of marriage, begun before the commencement of this Act, are pending (in respect of the same marriage) in Scotland, Northern Ireland, the Channel Islands or the Isle of Man; and provision may be made by rules of court as to when for the purposes of this subsection proceedings are to be treated as begun or pending in any of those places.

(4) Nothing in this Part of this Act—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4

(b) affects the court’s jurisdiction to entertain any proceedings begun before the commencement of this Act.

Textual Amendments

F4 S. 6(4)(a) repealed by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 46(3), 48(2), Sch. 3

Modifications etc. (not altering text)

C1 The text of ss. 6(1)(2), Sch. 4 para. 1, Sch. 6 is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

M2 1973 c.18

Part III S JURISDICTION IN CONSISTORIAL CAUSES (SCOTLAND)

7 Jurisdiction of Court of Session. S

(1) Subsections (2) to (8) below shall have effect, subject to section 12(6) of this Act, with respect to the jurisdiction of the Court of Session to entertain—

(a) an action for divorce, separation, declarator of nullity of marriage, declarator of marriage, declarator of freedom and putting to silence; and

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5

(2) The Court shall have jurisdiction to entertain an action for divorce, separation or declarator of freedom and putting to silence if (and only if) either of the parties to the marriage in question—

(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.

(3) The Court shall have jurisdiction to entertain an action for declarator of marriage or declarator of nullity of marriage if (and only if) either of the parties to the marriage—

(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; 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.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5

(a) the petitioner is domiciled in Scotland on the date when the proceedings are begun or was habitually resident there throughout the period of one year ending with that date; or

(b) the person whose death is sought to be presumed was domiciled in Scotland on the date on which he was last known to be alive, or had been habitually resident there throughout the period of one year ending with that date.

(5) The Court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of subsection (2) or (3) above (or of this subsection), also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, separation or declarator of marriage, declarator of nullity of marriage or declarator of freedom and putting to silence, notwithstanding that jurisdiction would not be exercisable under subsection (2) or (3).

(6) Nothing in this section affects the rules governing the jurisdiction of the Court of Session to entertain, in an action for divorce, an application for payment by a co-defender of damages or expenses.

(7) The foregoing provisions of this section are without prejudice to any rule of law whereby the Court of Session has jurisdiction in certain circumstances to entertain actions for separation as a matter of necessity and urgency.

(8) No action for divorce in respect of a marriage shall be entertained by the Court of Session by virtue of subsection (2) or (5) above while proceedings for divorce or nullity of marriage, begun before the commencement of this Act, are pending (in respect of the same marriage) in England and Wales, Northern Ireland, the Channel Islands or the Isle of Man; and provision may be made by rules of court as to when, for the purposes of this subsection, proceedings are to be treated as begun or pending in any of those places.

Textual Amendments

F5 S. 7(1)(b), (4) repealed by Presumption of Death (Scotland) Act 1977 (c. 27, SIF 116:2), s. 19, Sch. 2

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

(1) Subsections (2) to (4) below shall have effect, subject to section 12(6) of this Act, with respect to the jurisdiction of the sheriff court to entertain an action for separation [F6 or divorce].

(2) The court shall have jurisdiction to entertain an action for separation [F7 or divorce]if (and only if)—

(a) either party to the marriage in question—

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

(ii) was habitually resident there 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.

(3) In respect of any marriage, the court shall have jurisdiction to entertain an action for separation [F8 or divorce](notwithstanding that jurisdiction would not be exercisable under subsection (2) 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), or of this subsection.

(4) The foregoing provisions of this section are without prejudice to any jurisdiction of a sheriff court to entertain an action of separation [F9 or divorce]remitted to it in pursuance of any enactment or rule of court.

Textual Amendments

F6 Words 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

F7 Words 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)

F8 Words 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(c)

F9 Words 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(d)

9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10 S

Textual Amendments

F10 S. 9 repealed by Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55), s. 28(2), Sch. 3

10 Ancillary and collateral orders. S

(1) Where after the commencement of this Act—

(a) an application is made to the Court of Session or to a sheriff court for—

(i) the making as respects any person or property of an order under any of the enactments or rules of law specified in Part I or Part II of Schedule 2 to this Act, or

(ii) the variation or recall as respects any person or property of an order made (whether before or after the commencement of this Act) under any of those enactments or rules of law; and

(b) the application is competently made in connection with an action for any of the following remedies, namely, divorce, separation, declarator of marriage and declarator of nullity of marriage (whether the application is made in the same proceedings or in other proceedings and whether it is made before or after the pronouncement of a final decree in the action),

then, if the court has or, as the case may be, had by virtue of this Act or of any enactment or rule of law in force before the commencement of this Act jurisdiction to entertain the action, it shall have jurisdiction to entertain the application as respects the person or property in question whether or not it would have jurisdiction to do so apart from this subsection.

(2) It is hereby declared that where—

(a) the Court of Session has jurisdiction by virtue of this section to entertain an application for the variation or recall as respects any person of an order made by it, and

(b) the order is one to which section 8 (variation and recall by the sheriff of certain orders made by the Court of Session) of the M3 Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 applies,

then, for the purposes of any application under the said section 8 for the variation or recall of the order in so far as it relates to that person, the sheriff, as defined in that section, has jurisdiction as respects that person to exercise the power conferred on him by that section.

Marginal Citations

M3 1966 c. 19.

11 Sisting of certain actions. S

The provisions of Schedule 3 to this Act shall have effect with respect to the sisting of actions for any of the following remedies, namely, divorce, separation, declarator of marriage or declarator of nullity of marriage, and with respect to the other matters mentioned in that Schedule; but nothing in that Schedule—

(a) requires or authorises a sist of an action which is pending when this Act comes into force; or

(b) prejudices any power to sist an action which is exercisable by any court apart from the Schedule.

12 Supplementary. S

(1) In relation to any action for any of the following three remedies, namely, declarator of marriage, declarator of nullity of marriage, and declarator of freedom and putting to silence, references in this Part of this Act to the marriage shall be construed as including references to the alleged, or, as the case may be, the purported, marriage.

(2) References in this Part of this Act to an action for a particular remedy shall be construed, in relation to a case where the remedy is sought along with other remedies in one action, as references to so much of the proceedings in the action as relates to the particular remedy.

(3) References in this Part of this Act to the remedy of separation shall be construed, in relation to an action in a sheriff court, as references to the remedy of separation and aliment.

(4) For the purposes of this Act the period during which an action in the Court of Session or a sheriff court is pending shall be regarded as including any period while the taking of an appeal is competent and the period while any proceedings on appeal are pending; and in this subsection references to an appeal include references to a reclaiming motion.

(5) In this Part of this Act any reference to an enactment shall, unless the contrary intention appears, be construed as a reference to that enactment as amended or extended, and as including a reference thereto as applied, by or under any other enactment (including this Act).

(6) Nothing in this Part of this Act affects any court’s jurisdiction to entertain any proceedings begun before the commencement of this Act.

(7) Subject to subsection (6) above, the enactments described in Schedule 4 to this Act shall have effect subject to the amendments therein specified, being amendments consequential on the provisions of this Part of this Act.

Part IV E+W+S

13, 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F11 E+W+S

Textual Amendments

F11 Pt. IV (ss. 13, 14) repealed by S.I. 1978/1045, Sch. 5

Part V U.K. MISCELLANEOUS AND GENERAL

15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F12 U.K.

Textual Amendments

F12 S. 15 repealed by Family Law Act 1986 (c. 55, SIF 49:3), ss. 68(2), 69, Sch. 2

16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13 U.K.

Textual Amendments

F13 S. 16 repealed by Family Law Act 1986 (c. 55, SIF 49:3), ss. 68(2), 69, Sch. 2

17 Citation, etc. U.K.

(1) This Act may be cited as the Domicile and Matrimonial Proceedings Act 1973.

(2) Subject to sections 6(4), 12(6) and 14(3) of this Act, the enactments specified in Schedule 6 to this Act (including certain enactments of the Parliament of Northern Ireland) are hereby repealed to the extent specified in the third column of that Schedule.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14

(4) Part II of this Act extends to England and Wales only; Part III extends to Scotland only; . . . F15 and this part extends to the whole of the United Kingdom.

(5) This Act shall come into force on 1st January 1974.

Textual Amendments

F14 S. 17(3) repealed by Zimbabwe Act 1979 (c. 60, SIF 26:39), s. 6(3), Sch. 3

F15 Words repealed by S.I. 1978/1045, Sch. 5