Matrimonial and Family Proceedings Act 1984

28 Circumstances in which a Scottish court may entertain application for financial provision. S

(1) Where parties to a marriage have been divorced in an overseas country, then, subject to [F1 subsection (3A)] below, if the jurisdiction requirements and the conditions set out in subsections (2) and (3) below respectively are satisfied, the court may entertain an application by one of the parties for an order for financial provision.

(2) The jurisdictional requirements mentioned in subsection (1) above are that—

(a) the applicant was domiciled or habitually resident in Scotland on the date when the application was made; and

(b) the other party to the marriage—

(i) was domiciled or habitually resident in Scotland on the date when the application was made; or

(ii) was domiciled or habitually resident in Scotland when the parties last lived together as husband and wife; or

(iii) on the date when the application was made, was an owner or tenant of, or had a beneficial interest in, property in Scotland which had at some time been a matrimonial home of the parties; and

(c) where the court is the sheriff court, either—

(i) one of the parties was, on the date when the application was made, habitually resident in the sheriffdom; or

(ii) paragraph (b)(iii) above is satisfied in respect of property wholly or partially within the sheriffdom.

(3) The conditions mentioned in subsection (1) above are that—

(a) the divorce falls to be recognised in Scotland;

(b) the other party to the marriage initiated the proceedings for divorce;

(c) the application was made within five years after the date when the divorce took effect;

(d) a court in Scotland would have had jurisdiction to entertain an action for divorce between the parties if such an action had been brought in Scotland immediately before the foreign divorce took effect;

(e) the marriage had a substantial connection with Scotland; and

(f) both parties are living at the time of the application.

[F2 (3A) If an application or part of an application relates to a matter [F3 in relation to which Article 18 of the 2007 Hague Convention applies, the court may not entertain the application or that part of it except where permitted by Article 18.]

F4 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F5 (5) “The 2007 Hague Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance concluded on 23 November 2007 at The Hague.]]

Textual Amendments

F1 Words in s. 28(1) substituted (31.12.2020) by S.I. 2019/519, Sch. para. 13(4)(a) (as substituted by The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1574), regs. 1, 5(3)(e)(ii))

F2 S. 28(3A) inserted (18.6.2011) by The Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (S.I. 2011/1484), reg. 1(1), Sch. 7 para. 10(4)(b)

F3 Words in s. 28(3A) substituted (31.12.2020) by S.I. 2019/519, Sch. para. 13(4)(b) (as substituted by The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1574), regs. 1, 5(3)(e)(ii))

F4 S. 28(4) omitted (31.12.2020) by virtue of The Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/479), regs. 1(1), 63(b) (with regs. 92-95) (as amended by S.I. 2020/1493, regs. 1(1), 5(2)-(5)); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in s. 28(5) substituted (31.12.2020) by S.I. 2019/519, Sch. para. 13(4)(c) (as substituted by The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1574), regs. 1, 5(3)(e)(ii))