SCHEDULES
F26SCHEDULE A1 Jurisdiction in relation to marriage of same sex couples
1Introduction
This Schedule shall have effect, subject to section 6(3) and (4), with respect to the jurisdiction of the court to entertain any of the following proceedings in relation to a marriage of a same sex couple—
a
proceedings for divorce, judicial separation or nullity of marriage;
C4 b
proceedings for an order which ends a marriage on the ground that one of the couple is dead; and
c
proceedings for a declaration of validity.
2Divorce, judicial separation or annulment
1
The court has jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)—
a
the court has jurisdiction under regulations under paragraph 5,
b
no court has, or is recognised as having, jurisdiction under regulations under paragraph 5 and either of the married same sex couple is domiciled in England and Wales on the date when the proceedings are begun, or
c
the following conditions are met—
i
the two people concerned married each other under the law of England and Wales,
ii
no court has, or is recognised as having, jurisdiction under regulations under paragraph 5, and
iii
it appears to the court to be in the interests of justice to assume jurisdiction in the case.
2
The court has jurisdiction to entertain proceedings for nullity of marriage if (and only if)—
a
the court has jurisdiction under regulations under paragraph 5,
b
no court has, or is recognised as having, jurisdiction under regulations under paragraph 5 and either of the married same sex couple—
i
is domiciled in England and Wales on the date when the proceedings are begun, or
ii
died before that date and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of 1 year ending with the date of death, or
c
the following conditions are met—
i
the two people concerned married each other under the law of England and Wales,
ii
no court has, or is recognised as having, jurisdiction under regulations under paragraph 5, and
iii
it appears to the court to be in the interests of justice to assume jurisdiction in the case.
3
At any time when proceedings are pending in respect of which the court has jurisdiction by virtue of sub-paragraph (1) or (2) (or this sub-paragraph), the court also has jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, even though that jurisdiction would not be exercisable under subsection (1) or (2).
C5 3 Presumption of death order
The court has jurisdiction to entertain proceedings for an order which ends a marriage on the ground that one of the couple is dead on an application made by the other of the couple (“ the applicant ”) if (and only if)—
a
at the time the application is made, the High Court does not have jurisdiction to entertain an application by the applicant under section 1 of the Presumption of Death Act 2013 for a declaration that the applicant's spouse is presumed to be dead, and
b
the two people concerned married each other under the law of England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.
4Declaration of validity
The court has jurisdiction to entertain an application for a declaration of validity if (and only if)—
a
either of the parties to the marriage to which the application relates—
i
is domiciled in England and Wales on the date of the application,
ii
has been habitually resident in England and Wales throughout the period of 1 year ending with that date, or
iii
died before that date and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of 1 year ending with the date of death, or
b
the two people concerned married each other under the law of England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.
5 Power to make provision corresponding to EC Regulation 2201/2003
1
The Lord Chancellor may by regulations make provision—
a
as to the jurisdiction of courts in England and Wales in proceedings for the divorce of, or annulment of the marriage of, a same sex couple or for judicial separation of a married same sex couple where one of the couple—
i
is or has been habitually resident in a member State,
ii
is a national of a member State, or
iii
is domiciled in a part of the United Kingdom or the Republic of Ireland, and
b
as to the recognition in England and Wales of any judgment of a court of another member State which orders the divorce of, or annulment of a marriage of, a same sex couple or the judicial separation of a married same sex couple.
2
The regulations may in particular make provision corresponding to that made by Council Regulation ( EC ) No 2201/2003 of 27th November 2003 in relation to jurisdiction and the recognition and enforcement of judgments in matrimonial matters.
3
The regulations may provide that for the purposes of the regulations “ member State ” means—
a
all member States with the exception of such member States as are specified in the regulations, or
b
such member States as are specified in the regulations.
4
The regulations may make provision under sub-paragraph (1)(b) which applies even if the date of the divorce, annulment or judicial separation is earlier than the date on which this paragraph comes into force.
5
Regulations under this paragraph are to be made by statutory instrument.
6
A statutory instrument containing regulations under this paragraph may not be made unless a draft of the statutory instrument containing the order or regulations has been laid before, and approved by resolution of, each House of Parliament.
6Interpretation
In this Schedule “ declaration of validity ” means—
a
a declaration as to the validity of a marriage,
b
a declaration as to the subsistence of a marriage, or
c
a declaration as to the validity of a divorce, annulment or judicial separation obtained outside England and Wales in respect of a marriage.
SCHEDULE 1 STAYING OF MATRIMONIAL PROCEEDINGS (ENGLAND AND WALES)
Interpretation
1
The following five paragraphs have effect for the interpretation of this Schedule.
2
“Matrimonial proceedings” means any proceedings so far as they are one or more of the five following kinds F27(whether relating to a marriage of a man and a woman or a marriage of a same sex couple), namely, proceedings for—
divorce,
judicial separation,
nullity of marriage,
a declaration as to the validity of a marriage of the petitioner, and
a declaration as to the subsistence of such a marriage.
3
1
“Another jurisdiction” means any country outside England and Wales.
2
“Related jurisdiction” means any of the following countries, namely, Scotland, Northern Ireland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).
4
1
References to the trial or first trial in any proceedings do not include references to the separate trial of an issue as to jurisdiction only.
2
For purposes of this Schedule, proceedings in the court are continuing if they are pending and not stayed.
5
Any reference in this Schedule to proceedings in another jurisdiction is to proceedings in a court of that jurisdiction, and to any other proceedings in that jurisdiction, which are of a description prescribed for the purposes of this paragraph; and provision may be made by rules of court as to when proceedings of any description in another jurisdiction are continuing for the purposes of this Schedule.
6
“Prescribed” means prescribed by rules of court.
Duty to furnish particulars of concurrent proceedings in another jurisdiction
7
While matrimonial proceedings are pending in the court in respect of a marriage and the trial or first trial in those proceedings has not begun, it shall be the duty of any person who is a petitioner in the proceedings, or is a respondent and has in his answer included a prayer for relief, to furnish, in such manner and to such persons and on such occasions as may be prescribed, such particulars as may be prescribed of any proceedings which—
a
he knows to be continuing in another jurisdiction; and
b
are in respect of that marriage or capable of affecting its validity or subsistence.
Obligatory stays
8
1
Where before the beginning of the trial or first trial in any proceedings for divorce which are continuing in the court it appears to the court on the application of a party to the marriage—
a
that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and
b
that the parties to the marriage have resided together after F30 they entered into it; and
c
that the place where they resided together when the proceedings in the court were begun or, if they did not then reside together, where they last resided together before those proceedings were begun, is in that jurisdiction; and
d
that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which the proceedings in the court were begun,
it shall be the duty of the court, subject to paragraph 10(2) below, to order that the proceedings in the court be stayed.
2
References in sub-paragraph (1) above to the proceedings in the court are, in the case of proceedings which are not only proceedings for divorce, to the proceedings so far as they are proceedings for divorce.
Discretionary stays
9
1
Where before the beginning of the trial or first trial in any matrimonial proceedings F1, other than proceedings governed by the Council Regulation,. which are continuing in the court it appears to the court—
a
that any proceedings in respect of the marriage in question, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and
b
that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,
the court may then, if it thinks fit, order that the proceedings in the court be stayed or, as the case may be, that those proceedings be stayed so far as they consist of proceedings of that kind.
2
In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed.
3
In the case of any proceedings so far as they are proceedings for divorce, the court shall not exercise the power conferred on it by sub-paragraph (1) above while an application under paragraph 8 above in respect of the proceedings is pending.
4
If, at any time after the beginning of the trial or first trial in any matrimonial proceedings which are pending in the court, the court declares by order that it is satisfied that a person has failed to perform the duty imposed on him in respect of the proceedings by paragraph 7 above, sub-paragraph (1) above shall have effect in relation to those proceedings and, to the other proceedings by reference to which the declaration is made, as if the words “before the beginning of the trial or first trial” were omitted; but no action shall lie in respect of the failure of a person to perform such a duty.
Supplementary
10
1
Where an order staying any proceedings is in force in pursuance of paragraph 8 or 9 above, the court may, if it thinks fit, on the application of a party to the proceedings, discharge the order if it appears to the court that the other proceedings by reference to which the order was made are stayed or concluded, or that a party to those other proceedings has delayed unreasonably in prosecuting them.
2
If the court discharges an order staying any proceedings and made in pursuance of paragraph 8 above, the court shall not again stay those proceedings in pursuance of that paragraph.
11
1
The provisions of sub-paragraphs (2) and (3) below shall apply (subject to sub-paragraph (4)) where proceedings for divorce, judicial separation or nullity of marriage are stayed by reference to proceedings in a related jurisdiction for divorce, judicial separation or nullity of marriage; and in this paragraph—
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“lump sum order” means such an order as is mentioned in paragraph (f) of section 23(1) of the M1Matrimonial Causes Act 1973 (lump sum payment for children), being an order made under section 23(1) or (2)(a) F3or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(c) of that Schedule;
“the other proceedings”, in relation to any stayed proceedings, means the proceedings in another jurisdiction by reference to which the stay was imposed;
“relevant order” means—
- a
an order under section 22 of the M2 Matrimonial Causes Act 1973 (maintenance for spouse pending suit),
- b
such an order as is mentioned in paragraph (d) or (e) of section 23(1) of that Act (periodical payments for children) being an order made under section 23(1) or (2)(a) F4or an order made in equivalent circumstances under Schedule 1 to the Children Act 1989 and of a kind mentioned in paragraph 1(2)(a) or (b) of that Schedule,
- c
an order under section 42(1)(a) of that Act (orders for the custody and education of children) F5or a section 8 order under Children Act 1989, and
- d
except for the purposes of sub-paragraph (3) below, any order restraining a person from removing a child out of England and Wales or out of F6care of another person; and
- a
“stayed” means stayed in pursuance of this Schedule.
2
Where any proceedings are stayed, then, without prejudice to the effect of the stay apart from this paragraph—
a
the court shall not have power to make a relevant order or a lump sum order in connection with the stayed proceedings except in pursuance of paragraph (c) below; and
b
subject to paragraph (c) below, any relevant order made in connection with the stayed proceedings shall, unless the stay is previously removed or the order previously discharged, cease to have effect on the expiration of the period of three months beginning with the date on which the stay was imposed; but
c
if the court considers that, for the purpose of dealing with circumstances needing to be dealt with urgently, it is necessary during or after that period to make a relevant order or a lump sum order in connection with the stayed proceedings or to extend or further extend the duration of a relevant order made in connection with the stayed proceedings, the court may do so and the order shall not cease to have effect by virtue of paragraph (b) above.
3
Where any proceedings are stayed and at the time when the stay is imposed an order is in force, or at a subsequent time an order comes into force, which was made in connection with the other proceedings and provides for any of the F7 . . . following matters, namely, periodical payments for a spouse of the marriage in question, periodical payments for a child, F8or any provision which could be made by a section 8 order under the Children Act 1989 then, on the imposition of the stay in a case where the order is in force when the stay is imposed and on the coming into force of the order in any other case—
a
any relevant order made in connection with the stayed proceedings shall cease to have effect in so far as it makes for a spouse or child any provision for any of those matters as respects which the same or different provision for that spouse or child is made by the other order;
b
the court shall not have power in connection with the stayed proceedings to make a relevant order containing for a spouse or child provision for any of those matters as respects which any provision for that spouse or child is made by the other order; and
c
if the other order contains provision for periodical payments for a child, the court shall not have power in connection with the stayed proceedings to make a lump sum order for that child.
F93A
Where any such order as is mentioned in paragraph ( e ) of section 23(1) of the Matrimonial Causes Act 1973, being an order made under section 23(1) of the Matrimonial Causes Act 1973, being an order made under section 23(1) or (2)( a ) of that Act, ceases to have effect by virtue of sub-paragraph (2) or (3) above, any order made under section 24A(1) of that Act which requires the proceeds of sale of property to be used for securing periodical payments under the first mentioned order shall also cease to have effect.
4
If any proceedings are stayed so far as they consist of matrimonial proceedings of a particular kind but are not stayed so far as they consist of matrimonial proceedings of a different kind, subparagraphs (2) and (3) above shall not apply to the proceedings but, without prejudice to the effect of the stay apart from this paragraph, the court shall not have power to make a relevant order or a lump sum order in connection with the proceedings so far as they are stayed; and in this sub-paragraph references to matrimonial proceedings do not include proceedings for a declaration.
F244A
Sub-paragraph (4B) applies where—
a
proceedings are stayed as described in sub-paragraph (1) or (4), and
b
at the time when the stay is imposed, a F29child arrangements order (within the meaning of the Children Act 1989) made in connection with the stayed proceedings is in force.
4B
While the stay applies to the proceedings, the court may not—
a
make an enforcement order (within the meaning of the Children Act 1989) in relation to the F28child arrangements order, or
b
as regards an enforcement order already made in relation to the F28child arrangements order, exercise its powers under paragraph 9(2) of Schedule A1 to the Children Act 1989 in relation to the enforcement order.
5
F25Except as provided in sub-paragraph (4B), nothing in this paragraph affects any power of the court.
a
to vary or discharge a relevant order so far as the order is for the time being in force; or
b
to enforce a relevant order as respects any period when it is or was in force; or
c
to make a relevant order or a lump sum order in connection with proceedings which were but are no longer stayed.
F31SCHEDULE 1BJURISDICTION IN RELATION TO SAME SEX MARRIAGES (SCOTLAND)
Sch. 1B inserted (1.9.2014 for specified purposes, 16.12.2014 in so far as not already in force) by Marriage and Civil Partnership (Scotland) Act 2014 (asp 5), s. 36, Sch. 1 para. 1(4); S.S.I. 2014/212, art. 2, Sch. (as amended (1.9.2014) by S.S.I. 2014/218, art. 2(3), Sch.); S.S.I. 2014/287, art. 3, Sch.
Introduction
1
1
This Schedule has effect with respect to the jurisdiction of the Court of Session and of the sheriff court to entertain, in relation to same sex marriages, proceedings for—
a
divorce,
b
separation,
c
declarator of marriage,
d
declarator of nullity of marriage,
e
declarator of recognition, or non-recognition, of a relevant foreign decree.
2
References in this Schedule to “relevant proceedings” are to such proceedings as are mentioned in sub-paragraph (1).
3
In this Schedule—
“ relevant foreign decree ” means a decree of divorce, separation or nullity granted outwith a member State,
“ same sex marriage ” means a marriage between persons of the same sex.
Power to make provision corresponding to EC Regulation 2201/2003
2
1
The Scottish Ministers may by regulations make provision—
a
as to the jurisdiction of courts in Scotland in relevant proceedings in relation to a same sex marriage where one of the parties to the marriage—
i
is or has been habitually resident in a member State,
ii
is a national of a member State, or
iii
is domiciled in a part of the United Kingdom or in the Republic of Ireland, and
b
as to the recognition in Scotland of any judgment of a court of another member State which orders the divorce or separation of the parties to a same sex marriage, or the annulment of a same sex marriage.
2
The regulations may in particular make provision corresponding to that made by Council Regulation ( EC ) No 2201/2003 of 27 November 2003 in relation to jurisdiction and the recognition and enforcement of judgments in matrimonial matters.
3
The regulations may provide that for the purposes of this Schedule and the regulations “ member State ” means—
a
all member States with the exception of such member States as are specified in the regulations, or
b
such member States as are specified in the regulations.
4
The regulations may make provision under sub-paragraph (1)(b) which applies even in a case where the date of the divorce, separation or annulment is earlier than the date on which this paragraph comes into force.
5
The regulations are subject to the affirmative procedure.
Divorce or separation
3
1
The Court of Session has jurisdiction to entertain proceedings for the divorce or separation of the parties to a same sex marriage if (and only if)—
a
the Scottish courts have jurisdiction under regulations under paragraph 2, or
b
no court has, or is recognised as having, jurisdiction under those regulations and either party to the marriage is domiciled in Scotland on the date on which the proceedings are begun.
2
The sheriff court has jurisdiction to entertain proceedings for the divorce or separation of the parties to a same sex marriage if (and only if)—
a
the requirements of paragraph (a) or (b) of sub-paragraph (1) are met, and
b
either party to the marriage—
i
was resident in the sheriffdom for a period of 40 days ending with the date on which the proceedings are 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.
3
Despite sub-paragraph (2), the sheriff court of the sheriffdom of Lothian and Borders at Edinburgh also has jurisdiction to entertain proceedings for the divorce or separation of the parties to a same sex marriage if the following requirements are met—
a
the parties married each other in Scotland,
b
no court has, or is recognised as having, jurisdiction under regulations under paragraph 2, and
c
it appears to the court to be in the interests of justice to assume jurisdiction in the case.
Declarator of marriage
4
1
In relation to a same sex marriage, the Court of Session has jurisdiction to entertain proceedings for declarator of marriage if (and only if) either of the parties to the marriage—
a
is domiciled in Scotland on the date on which the proceedings are 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.
2
In relation to a same sex marriage, the sheriff court has jurisdiction to entertain proceedings for declarator of marriage if (and only if)—
a
the requirements of paragraph (a), (b) or (c) of sub-paragraph (1) are met in relation to either party to the marriage, and
b
either party of the marriage—
i
was resident in the sheriffdom for a period of 40 days ending with the date on which the proceedings are 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.
Nullity of marriage
5
1
The Court of Session has jurisdiction to entertain proceedings for declarator of nullity of a same sex marriage if (and only if)—
a
the Scottish courts have jurisdiction under regulations under paragraph 2, or
b
no court has, or is recognised as having, jurisdiction under those regulations and either party to the marriage—
i
is domiciled in Scotland on the date on which the proceedings are begun, 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.
2
The sheriff court has jurisdiction to entertain proceedings for declarator of nullity of a same sex marriage if (and only if)—
a
the requirements of paragraph (a) or (b) of sub-paragraph (1) are met, and
b
either party to the marriage—
i
was resident in the sheriffdom for a period of 40 days ending with the date on which the proceedings are 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.
3
Despite sub-paragraph (2), the sheriff court of the sheriffdom of Lothian and Borders at Edinburgh also has jurisdiction to entertain proceedings for declarator of nullity of a same sex marriage if the following requirements are met—
a
the parties married each other in Scotland,
b
no court has, or is recognised as having, jurisdiction under regulations under paragraph 2, and
c
it appears to the court to be in the interests of justice to assume jurisdiction in the case.
Recognition, or non-recognition, of foreign decrees
6
1
The Court of Session has jurisdiction to entertain proceedings for declarator of recognition, or non-recognition, of a relevant foreign decree relating to a same sex marriage if (and only if)—
a
the Scottish courts have jurisdiction under regulations under paragraph 2, or
b
no court has, or is recognised as having, jurisdiction under those regulations and either party to the marriage—
i
is domiciled in Scotland on the date on which the proceedings are begun, 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.
2
The sheriff court has jurisdiction to entertain proceedings for declarator of recognition, or non-recognition, of a relevant foreign decree relating to a same sex marriage if (and only if)—
a
the requirements of paragraph (a) or (b) of sub-paragraph (1) are met, and
b
either party to the marriage—
i
was resident in the sheriffdom for a period of 40 days ending with the date on which the proceedings are 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.
Supplementary provision
7
1
Paragraph 3(1) does not affect any rule of law under which the Court of Session has jurisdiction in certain circumstances to entertain proceedings for separation as a matter of necessity and urgency.
2
Paragraphs 3 and 5 do not affect any jurisdiction of a sheriff court to entertain any proceedings for separation, divorce or declarator of nullity of marriage remitted to the court under any enactment or rule of court, if entertaining the proceedings would not contravene regulations under paragraph 2.
3
At any time when proceedings are pending in respect of which a court has jurisdiction by virtue of any of paragraphs 3 to 6 (or this paragraph), the court also has jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, separation or declarator of marriage or of nullity of marriage even though that jurisdiction would not be exercisable under any of paragraphs 3 to 6.
SCHEDULE 2ANCILLARY AND COLLATERAL ORDERS (SCOTLAND)
Part I
Enactments and rules of law referred to in section 10(1) and in Schedule 3 paragraph 11(1)
1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10
F112A
Any enactment or rule of law empowering a court to make an order for payment of aliment (including interim aliment).
3
4
5
Section 10 of the Matrimonial Proceedings (Children) Act 1958 so far as relating to orders committing the care of a child to an individual.
6
Section 13 (power to prohibit in certain cases removal of child furth of Scotland or out of control of person having custody of him) of the Matrimonial Proceedings (Children) Act 1958.
7
Any enactment or rule of law empowering a court to vary or recall an order the power to make which is conferred by any enactment mentioned in this Part of this Schedule or by any rule of law so mentioned.
Part II
Further enactments and rules of law referred to in section 10(1)
8
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14
9
10
Section 10 of the M7Matrimonial Proceedings (Children) Act 1958, so far as relating to orders committing the care of a child to a local authority.
11
Section 12 (power of court to provide for supervision of child) of the Matrimonial Proceedings (Children) Act 1958.
12
Section 26 (orders for financial provision on divorce) and section 27 (orders relating to settlements and other dealings) of the M8Succession (Scotland) Act 1964.
F1512A
Section 5 (orders for financial provision) and section 6 (orders relating to settlements and other dealings) of the Divorce (Scotland) Act 1976.
F1612B
Section 8 (orders for financial provision on divorce), section 17(1) (financial provision on declarator of nullity of marriage) and section 18 (orders relating to avoidance transactions) of the Family Law (Scotland) Act 1985.
13
Any rule of law empowering a court, in connection with an action for declarator of nullity of marriage, to make an order for restitution of property as between the parties to the marriage or for the payment of damages by either of those parties.
14
Any rule of law empowering a court to make an order for the payment of expenses of the action in question by either party to the marriage.
15
Any enactment or rule of law empowering a court to vary or recall an order the power to make which is conferred by any enactment mentioned in this Part of this Schedule or by any rule of law so mentioned.
C3SCHEDULE 3 SISTING OF CONSISTORIAL ACTIONS (SCOTLAND)
Sch. 3 applied (with modifications) by Rules of the Court of Session 1994 (SI 1994/1443), Sch. 2, rule 49.18A (as inserted (8.12.2005) by S.S.I. 2005/632, arts. 1(1), 2(12))
Interpretation
1
The following six paragraphs have effect for the interpretation of this Schedule.
2
“Consistorial action” means any action so far as it is one or more of the following, namely, actions for—
divorce,
separation,
declarator of marriage,
declarator of nullity of marriage.
3
1
“Another jurisdiction” means any country outside Scotland.
2
“Related jurisdiction” means any of the following countries, namely, England and Wales, Northern Ireland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).
4
For the purposes of this Schedule—
a
in any action in the Court of Session or a sheriff court neither the taking of evidence on commission nor a separate proof relating to any preliminary plea shall be regarded as part of the proof in the action; and
b
any such action is continuing if it is pending and not sisted.
5
Any reference in this Schedule to proceedings in another jurisdiction is to proceedings in a court of that jurisdiction and to any other proceedings in that jurisdiction which are of a description prescribed for the purposes of this paragraph; and provision may be made by rules of court as to when proceedings of any description in another jurisdiction are continuing for the purposes of this Schedule.
6
“Prescribed” means prescribed by rules of court.
Duty to furnish particulars of concurrent proceedings in another jurisdiction
7
While any consistorial action is pending in the Court of Session or a sheriff court and proof in that action has not begun, it shall be the duty of the pursuer, and of any other person who has entered appearance in the action, to furnish, in such manner and to such persons and on such occasions as may be prescribed, such particulars as may be so prescribed of any proceedings which—
a
he knows to be continuing in another jurisdiction; and
b
are in respect of that marriage or capable of affecting its validity.
Mandatory sists
8
Where before the beginning of the proof in any action for divorce which is continuing in the Court of Session F17or in the Sheriff Court it appears to the Court F18concerned on the application of a party to the marriage—
a
that in respect of the same marriage proceedings for divorce or nullity of marriage are continuing in a related jurisdiction; and
b
that the parties to the marriage have resided together after the marriage was contracted; and
c
that the place where they resided together when the action in the Court was begun or, if they did not then reside together, where they last resided together before the date on which that action was begun is in that jurisdiction; and
d
that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which that action was begun;
it shall be the duty of the Court, subject to paragraph 10(2) below, to sist the action before it.
Discretionary sists
9
1
Where before the beginning of the proof in any consistorial action which is continuing in the Court of Session or in a sheriff court, it appears to the court concerned—
a
that any other proceedings in respect of the marriage in question or capable of affecting its validity are continuing in another jurisdiction, and
b
that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for those other proceedings to be disposed of before further steps are taken in the action in the said court,
the court may then if it thinks fit sist that action.
2
In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted, or not being sisted.
3
Sub-paragraph (1) above is without prejudice to the duty imposed . . . F19by paragraph 8 above.
4
If, at any time after the beginning of the proof in any consistorial action which is pending in the Court of Session or a sheriff court, the court concerned is satisfied that a person has failed to perform the duty imposed on him in respect of the action and any such other proceedings as aforesaid by paragraph 7 above, sub-paragraph (1) of this paragraph shall have effect in relation to that action and to the other proceedings as if the words “before the beginning of the proof” were omitted; but no action in respect of the failure of a person to perform such a duty shall be competent.
Supplementary
10
1
Where an action is sisted in pursuance of paragraph 8 or 9 above, the court may if it thinks fit, on the application of a party to the action, recall the sist if it appears to the court that the other proceedings by reference to which the action was sisted are sisted or concluded or that a party to those other proceedings has delayed unreasonably in prosecuting those other proceedings.
2
Where an action has been sisted in pursuance of paragraph 8 above by reference to some other proceedings, and the court recalls the sist in pursuance of the preceding sub-paragraph, the court shall not again sist the action in pursuance of the said paragraph 8.
11
1
The provisions of sub-paragraphs (2) and (3) below shall apply where an action for any of the following remedies, namely, divorce, separation and declarator of nullity of marriage, is sisted by reference to proceedings in a related jurisdiction for any of those remedies; and in this paragraph—
“custody” includes access to the child in question;
“the other proceedings”, in relation to any sisted action, means the proceedings in another jurisdiction by reference to which the action was sisted;
“relevant order” means an interim order F20relating to aliment or children; and
“sisted” means sisted in pursuance of this Schedule.
2
Where an action such as is mentioned in sub-paragraph (1) above is sisted, then, without prejudice to the effect of the sist apart from this paragraph—
a
the court shall not have power to make a relevant order in connection with the sisted action except in pursuance of paragraph (c) below; and
b
subject to the said paragraph (c), any relevant order made in connection with the sisted action shall (unless the sist or the relevant order has been previously recalled) cease to have effect on the expiration of the period of three months beginning with the date on which the sist comes into operation; but
c
if the court considers that as a matter of necessity and urgency it is necessary during or after that period to make a relevant order in connection with the sisted action or to extend or further extend the duration of a relevant order made in connection with the sisted action, the court may do so, and the order shall not cease to have effect by virtue of paragraph (b) above.
3
Where any action such as is mentioned in sub-paragraph (1) above is sisted and at the time when the sist comes into operation, an order is in force, or at a subsequent time an order comes into force, being an order made in connection with the other proceedings and providing for any of the following four matters, namely periodical payments for a spouse of the marriage in question, periodical payments for a child, the F21arrangements to be made as to with whom a child is to live, contact with a child, and any other matter relating to parental responsibilities within the meaning of section 1(3) of the Children (Scotland) Act 1995 or parental rights within the meaning of section 2(4) of that Act, then, as from the time when the sist comes into operation (in a case where the order is in force at that time) or (in any other case) on the coming into force of the order,—
a
any relevant order made in connection with the sisted action shall cease to have effect in so far as it makes for a spouse or child any provision for any of the said matters as respects which the same or different provision for that spouse or child is made by the other order; and
b
the court shall not have power in connection with the sisted action to make a relevant order containing for a spouse or child provision for any of the matters aforesaid as respects which any provision for that spouse or child is made by the other order.
4
Nothing in this paragraph affects any power of a court—
a
to vary or recall a relevant order in so far as the order is for the time being in force; or
b
to enforce a relevant order as respects any period when it is or was in force; or
c
to make a relevant order in connection with an action which was, but is no longer, sisted.
SCHEDULE 4 CONSEQUENTIAL AMENDMENTS OF SCOTTISH ENACTMENTS
C11
In section 6 of the M9Sheriff Courts (Scotland) Act 1907, at the beginning, there shall be inserted the words “Subject to section 8 of the Domicile and Matrimonial Proceedings Act 1973”.
2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F22
SCHEDULE 5 . . . F23
Sch. 5 repealed by S.I. 1978/1045, Sch. 5
C2SCHEDULE 6 Repeals
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.
Sch. A1 inserted (31.10.2013 for specified purposes, 13.3.2014 in so far as not already in force) by Marriage (Same Sex Couples) Act 2013 (c. 30), s. 21(3), Sch. 4 para. 8; S.I. 2013/2789, art. 2(b); S.I. 2014/93, art. 3(j)(i)