Legalize / United Kingdom / Public General Act

Domicile and Matrimonial Proceedings Act 1973

Type Public General Act

Publication 1973-07-25

Last updated 2022-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

163

Word in Sch. 1 para. 2 substituted (6.4.2022) by The Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022 (S.I. 2022/237), reg. 1(2), Sch. para. 1(3)(a) (with reg. 3); S.I. 2022/283, reg. 2

164

Words in Sch. 1 para. 7 substituted (6.4.2022) by The Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022 (S.I. 2022/237), reg. 1(2), Sch. para. 1(3)(b) (with reg. 3); S.I. 2022/283, reg. 2

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Sisting of certain actions.

Jurisdiction of High Court and family court.

Miscellaneous amendments, transitional provision and savings.

Jurisdiction of Court of Session.

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Sisting of certain actions.

SCHEDULE A1

Introduction

1

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;

(b) proceedings for an order which ends a marriage on the ground that one of the couple is dead; and

Divorce, judicial separation or annulment

2

(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

(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

(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).

3

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.

Declaration of validity

4

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

(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 England and Wales, or,

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) is domiciled in England and Wales, ...

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

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

(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.

Interpretation

6

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 1B

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,

(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 the United Kingdom, the Channel Islands and the Isle of Man,

“ same sex marriage ” means a marriage between persons of the same sex.

Power to make provision corresponding to EC Regulation 2201/2003

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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) either of the parties to the marriage —

(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.

(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 ..., and

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

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) ... either party to the marriage—

(i) is domiciled in Scotland on the date on which 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.

(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 ... 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 ..., and

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) ... either party to the marriage—

(i) is domiciled in Scotland on the date on which 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.

(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 ... 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....

(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.

Jurisdiction of High Court and family court.

Miscellaneous amendments, transitional provision and savings.

Jurisdiction of sheriff court in respect of actions for separation.

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8A

(1) Sections 7 and 8 do not apply in relation to marriages between persons of the same sex.

(2) Schedule 1B (jurisdiction in relation to same sex marriages (Scotland)) has effect.

Introduction

Presumption of death order

Power to make provision corresponding to provision for opposite sex married couples

Interpretation

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