Part III JURISDICTION IN CONSISTORIAL CAUSES (SCOTLAND)
7 Jurisdiction of Court of Session.
1
Subsections F34(2A) to (10) 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
F35aa
an action for declarator of recognition, or non-recognition, of a relevant foreign decree.
b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1
F382
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F22A
The Court shall have jurisdiction to entertain an action for divorce or separation if (and only if)–
a
the Scottish courts have jurisdiction under the Council Regulation; or
b
the action is an excluded action and either of the parties to the marriage in question is domiciled in Scotland on the date when the action is begun.
3
The Court shall have jurisdiction to entertain an action for declarator of marriage F3. . . 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.
F43A
The Court shall have jurisdiction to entertain an action for declarator of nullity of marriage F39or for declarator of recognition, or non-recognition, of a relevant foreign decree if (and only if)–
a
the Scottish courts have jurisdiction under the Council Regulation; or
b
the action is one to which subsection (3B) below applies and either of the parties to the marriage–
a
is domiciled in Scotland on the date when the action is begun; or
b
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.
3B
This subsection applies to an action–
a
which is an excluded action; or
b
where one of the parties to the marriage died before the date when the action is begun.
4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1
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)F5, (2A), (3) or (3A) 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 F40or, declarator of nullity of marriage F41... , notwithstanding that jurisdiction would not be exercisable F6under any of those subsections.
F75A
Subsection (5) does not give the Court jurisdiction to entertain proceedings in contravention of F25Article 6 of the Council Regulation.
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 F8this section 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.
F339
In this section, “relevant foreign decree” means a decree of divorce, nullity or separation granted outwith a member state of the European Union.
10
References in subsection (3A) 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.
8 Jurisdiction of sheriff court in respect of actions for separation.
1
Subsections (2) to F44(6) below shall have effect, subject to section 12(6) of this Act, with respect to the jurisdiction of the sheriff court to entertain—
b
an action for declarator of recognition, or non-recognition, of a relevant foreign decreeF51; and
c
an action for declarator of nullity of marriage.
2
The court shall have jurisdiction to entertain an action for separation F10or divorceF43 or for declarator of recognition, or non-recognition, of a relevant foreign decree if (and only if)—
F11a
either–
i
the Scottish courts have jurisdiction under the Council Regulation; or
ii
the action is an excluded action F26and either party to the marriage in question is domiciled in Scotland at the date when the action is begun;
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.
F482A
The court shall have jurisdiction to entertain an action for declarator of nullity of marriage 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
b
either—
i
the Scottish courts have jurisdiction under the Council Regulation; or
ii
the action is one to which subsection (2B) below applies and a condition mentioned in either subsection (2C) or (2D) is satisfied.
2B
This subsection applies to an action—
a
which is an excluded action; or
b
where one of the parties to the marriage in question died before the date when the action is begun.
2C
The condition is that either party to the marriage in question is domiciled in Scotland on the date when the action is begun.
2D
The condition is that either party to the marriage in question died before the date when the action is begun 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.
3
In respect of any marriage, the court shall have jurisdiction to entertain an action for separation F12or divorceF52 or declarator of nullity of marriage (notwithstanding that jurisdiction would not be exercisable under subsection (2) F53or (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), F54(2A) or this subsection.
F133A
Subsection (3) does not give the court jurisdiction to entertain an action in contravention of F27Article 6 of the Council Regulation.
4
The foregoing provisions of this section are without prejudice to any jurisdiction of a sheriff court to entertain an action of separation F14or divorceF49 or declarator of nullity of marriage remitted to it in pursuance of any enactment or rule of courtF15, provided that entertaining the action would not contravene F28Article 6 of the Council Regulation.
F425
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.
9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16
10 Ancillary and collateral orders.
1
F17Where after the commencement of this Act an application is competently made to the Court of Session or to a sheriff court for the making, or the variation or recall, of an order which is ancillary or collateral to 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 F18. . . whether or not it would have jurisdiction to do so apart from this subsection.
F19 1A
For the purposes of subsection (1) above, references to an application for the making, or the variation or recall, of an order are references to the making, or the variation or recall, of an order relating to children, aliment, financial provision on divorce, judicial separation, nullity of marriage or expenses.
F201B
Subsection (1) above does not give the Court of Session or a sheriff court jurisdiction to entertain an application in proceedings where–
a
the court is exercising jurisdiction in the proceedings by virtue of F23Article 3 of the Council Regulation; and
b
the making or variation of an order in consequence of the application would contravene F24Article 6 of the Council Regulation.
F471C
If the application or part of it relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, the Court of Session or a sheriff court may not entertain the application or that part of it unless it has jurisdiction to do so by virtue of that Regulation and that Schedule.
1D
In subsection (1C) “the Maintenance Regulation” means Council Regulation (EC) No 4/2009 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark.
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 M1Law 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.
11 Sisting of certain actions.
F291
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.
F302
Subsection (1) above and Schedule 3 to this Act and any power mentioned in subsection (1)(b) are subject to Article 19 of the Council Regulation.
12 Supplementary.
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).
F21a
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).
F22F31b
“Contracting State” means Belgium, Cyprus, Czech Republic, Germany, Greece, Spain, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Poland, Portugal, Slovak Republic, Slovenia, Finland, Sweden and the United Kingdom;
F32c
“the Council Regulation” means Council Regulation (EC) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility;
d
“excluded action” means an action in respect of which no court of a Contracting State has jurisdiction under the Council Regulation and the defender is not a person who is–
i
a national of a Contracting State (other than the United Kingdom or Ireland); or
ii
domiciled in Ireland
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.