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Domicile and Matrimonial Proceedings Act 1973

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This is the original version (as it was originally enacted).

Schedules

Schedule 1Staying of Matrimonial Proceedings (England and Wales)

Interpretation

1The 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, 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.

5Any 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

7While 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 its celebration ; 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 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 tire 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—

  • " custody " includes access to the child in question ;

  • " education " includes training ;

  • "lump sum order" means such an order as is mentioned in paragraph (f) of section 23(1) of the Matrimonial Causes Act 1973 (lump sum payment for children), being an order made under section 23(1) or (2)(a);

  • " 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 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),

    (c)

    an order under section 42(1)(a) of that Act (orders for the custody and education of children), 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 the custody, care or control of another person ; and

  • " 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 four following matters, namely, periodical payments for a spouse of the marriage in question, periodical payments for a child, the custody of a child and the education of a child 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 tine 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.

(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, sub-paragraphs (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.

(5)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.

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)

1Any rule of law empowering a court to make an order for payment of interim aliment pendente lite by one party to the marriage in question for the benefit of the other, including any such rule as extended by section 4 of the Married Women's Property (Scotland) Act 1920.

2Any rule of law empowering the Court of Session to make an order for payment of aliment (other than interim aliment pendente lite) by one party to the marriage in question for the benefit of the other, in connection with an action for separation, including any such rule as extended by section 4 of the Married Women's Property (Scotland) Act 1920.

3Paragraph (2) of section 5 of the Sheriff Courts (Scotland) Act 1907 so far as relating to orders for aliment or for regulating the custody of a child.

4Section 9 (orders with respect to children) of the Conjugal Rights (Scotland) Amendment Act 1861 as extended by section 1 of the Custody of Children (Scotland) Act 1939 and by sections 7 and 14 of the Matrimonial Proceedings (Children) Act 1958.

5Section 10 of the Matrimonial Proceedings (Children) Act 1958 so far as relating to orders committing the care of a child to an individual.

6Section 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.

7Any 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)

8Section 7 (guardianship in case of divorce or judicial separation) of the Guardianship of Infants Act 1886.

9Section 2 (effect of divorce on property rights) of the Divorce (Scotland) Act 1938, both as originally enacted and as substituted by section 7 of the Divorce (Scotland) Act 1964.

10Section 10 of the Matrimonial Proceedings (Children) Act 1958, so far as relating to orders committing the care of a child to a local authority.

11Section 12 (power of court to provide for supervision of child) of the Matrimonial Proceedings (Children) Act 1958.

12Section 26 (orders for financial provision on divorce) and section 27 (orders relating to settlements and other dealings) of the Succession (Scotland) Act 1964.

13Any 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.

14Any 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.

15Any 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.

Schedule 3Sisting of Consistorial Actions (Scotland)

Interpretation

1The 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).

4For 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.

5Any 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

7While 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

8Where before the beginning of the proof in any action for divorce which is continuing in the Court of Session 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 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)0) 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 on the Court of Session by 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 made by virtue of any of the enactments or rules of law specified in Part I of Schedule 2 to this Act; 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 custody of a child, and the education of a child, 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 4Consequential Amendments of Scottish Enactments

1In section 6 of the Sheriff 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.

2In section 5 of the Divorce (Scotland) Act 1938, in subsection (1), after the words " death of the other party, and " there shall be inserted the words

subject to subsection (3) of this section; and

at the end of the said section 5 there shall be inserted the following subsection:

(3)In proceedings on any such petition the court shall have jurisdiction to entertain the petition if, and only if.—

(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.

Schedule 5Staying of Matrimonial Proceedings (Northern Ireland)

1Schedule 1 to this Act shall extend to Northern Ireland with the modifications specified below.

2For paragraph 3, substitute the following—

3(1)" Another jurisdiction " means any country outside Northern Ireland.

(2)" Related jurisdiction " means any of the following countries, namely, England and Wales, Scotland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).

3In paragraph 6, for " rules of court" substitute

rules made under section 7 of the Northern Ireland Act 1962.

4(1)In paragraph 11(1), omit the definition of

lump sum order, and—

(a)for sub-paragraphs (a) to (c) of the definition of "relevant order " substitute—

(d)any order under section 19 or 22 of the Matrimonial Causes Act (Northern Ireland) 1939; and

(b)in paragraph (d) of that definition, for " England and Wales " substitute

Northern Ireland.

(2)In paragraph 11(2)(a) and (c), omit

or a lump sum order; and omit paragraph 11(3)(c).

Schedule 6Repeals

ChapterShort TitleExtent of Repeal
2 & 3 Geo. 6. c. 13. (N.I.)The Matrimonial Causes Act (Northern Ireland) 1939.Section 26.
7 & 8 Geo. 6. c. 43.The Matrimonial Causes (War Marriages) Act 1944.Section 3.
1946 c. 16. (N.I.)The Marriage and Matrimonial Causes Act (Northern Ireland) 1946.Section 3.
12, 13 & 14 Geo. 6. c. 100.The Law Reform (Miscellaneous Provisions) Act 1949.In section 2, subsections (1), (2) and (3).
14 Geo. 6. c. 37.The Maintenance Orders Act 1950.In section 6(2), the words " an action of separation and aliment".
1951 c. 7. (N.I.)The Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1951.Section 1.
10&llEliz.2. c. 21.The Commonwealth Immigrants Act 1962.Section 20.
1973 c. 18.The Matrimonial Causes Act 1973.

In section 19, in subsection (1) the words " subject to subsection (2) below ", subsections (2) and (5).

Section 46.

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