The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Made: 6th March 2019

Coming into force in accordance with regulation 1

The Secretary of State makes these Regulations in exercise of the powers conferred by section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 .

In accordance with paragraph 1(1) of Schedule 7 to that Act, a draft of this instrument has been laid before and approved by a resolution of each House of Parliament.

Part 1 — Introduction

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 and come into force on exit day.

• (2) Subject to paragraphs (3) and (4) these Regulations extend to the United Kingdom.

• (3) The following provisions do not extend to Scotland—

• (a) regulation 3;

• (b) paragraph 15(6) to (8) of the Schedule.

• (4) Subject to paragraph (3), any revocation or amendment made by these Regulations, and any saving or transitional provision in these Regulations, has the same extent as the provision to which it relates.

Interpretation

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In these Regulations—

• “Council Regulation No. 2201/2003” means Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/2000;

• “Council Regulation No. 4/2009” means Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations 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;

• “the relevant Central Authority” means—for England and Wales, the Lord Chancellor;for Scotland, the Scottish Ministers;for Northern Ireland, the Department of Justice;

• “the relevant competent authority” means—for England and Wales, the family court or the High Court, as specified under the law of England and Wales;for Scotland, the sheriff court or the Court of Session, as specified under the law of Scotland;for Northern Ireland, a magistrates' court or the High Court, as specified under the law of Northern Ireland.

Part 2 — Revocation of retained direct EU legislation

Revocation of Council Regulation No. 2201/2003

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Council Regulation No. 2201/2003 is revoked.

Revocation of Council Regulation No. 4/2009

4

Council Regulation No. 4/2009 is revoked.

Revocation of Council Regulation No 2116/2004

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Council Regulation (EC) No 2116/2004 amending Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, as regards treaties with the Holy See is revoked.

Revocation of Council Regulation No. 664/2009

6

Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations is revoked.

Part 3 — Amendment of primary and secondary legislation

Amendment of primary and secondary legislation

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The Schedule, which sets out amendments of primary and secondary legislation, has effect.

Part 4 — Saving and transitional provisions

Saving and transitional provisions

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• (1) Nothing in these Regulations affects the application of paragraphs 1, 2(b) and (c) and 3(a) and (b) of Article 67 of the withdrawal agreement and legislation amended or revoked by these Regulations continues to have effect for the purposes of those paragraphs as if the amendments and revocations had not been made.

• (2) The amendments and revocations made by these Regulations do not apply in relation to—

• (a) proceedings before a court seised before IP completion day in reliance upon the provisions of Schedule 6 (allocation within the United Kingdom of jurisdiction relating to maintenance matters) to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011; or

• (b) proceedings before a court seised, whether before or after IP completion day, in reliance upon a choice of court agreement concluded before IP completion day in accordance with Article 4 of Council Regulation No. 4/2009 or that Article as applied by paragraph 5 of Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011.

• (3) For the purposes of this regulation, a court is seised—

• (a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have service effected on the respondent; or

• (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps the applicant was required to take to have the document lodged with the court.

SCHEDULE — Amendment of primary and secondary legislation

PART 1 — Amendment of primary legislation

Amendment of the Maintenance Orders Act 1950

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• (1) The Maintenance Orders Act 1950 is amended as follows.

• (2) In section 15 (service of process), omit subsection (1)(a)(vi) and the “or” following it.

• (3) In section 22 (discharge and variation of maintenance orders)—

• (a) in subsection (1), omit “Subject to subsection (1ZA),”;

• (b) omit subsection (1ZA).

Amendment of the Maintenance and Affiliation Orders Act (Northern Ireland) 1966

2

• (1) The Maintenance and Affiliation Orders Act (Northern Ireland) 1966 is amended as follows.

• (2) In section 10 (orders to which this Part applies)—

• (a) omit subsection (6);

• (b) omit subsection (7).

• (3) In section 13A, in subsection (1), omit “or section 10(6)”.

Amendment of the Administration of Justice Act 1970

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In Schedule 8 (maintenance orders for purposes of 1958 Act and Part II of this Act) to the Administration of Justice Act 1970 omit paragraph 13B.

Amendment of the Attachment of Earnings Act 1971

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In Schedule 1 (maintenance orders to which this Act applies) to the Attachment of Earnings Act 1971 omit paragraph 14A.

Amendment of the Maintenance Orders (Reciprocal Enforcement) Act 1972

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• (1) The Maintenance Orders (Reciprocal Enforcement) Act 1972 is amended as follows.

• (2) In section 4 (power of sheriff to make provisional maintenance order against person residing in reciprocating country)—

• (a) for subsection (1) substitute—

(1) In any action where the sheriff has jurisdiction by virtue of subsection (2) and the defender resides in a reciprocating country, any maintenance order granted by the sheriff shall be a provisional order.

• (b) after subsection (1) insert—

(2) In matters relating to maintenance, a person may be sued in the courts for the place where the pursuer is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which has jurisdiction to entertain those proceedings, provided than an action ... of affiliation and aliment shall be treated as a matter relating to maintenance which is not ancillary to proceedings concerning the status of a person.

• (c) omit subsection (7).

• (3) In section 35 (further provisions with respect to variation etc. of orders by the family court in England and Wales) omit—

• (a) subsection (1B);

• (b) subsection (4).

• (4) In section 35A (further provisions with respect to variation etc of orders by magistrates' courts in Northern Ireland) omit—

• (a) subsection (1B);

• (b) subsection (4).

Amendment of the Matrimonial Causes Act 1973

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• (1) The Matrimonial Causes Act 1973 is amended as follows.

• (2) In section 27 (financial provision orders in cases of neglect to maintain), for subsection (2) substitute—

(2) The court may not entertain an application under this section unless— (a) the applicant or the respondent is domiciled in England and Wales on the date of the application; (b) the applicant has been habitually resident there throughout the period of one year ending with that date; or (c) the respondent is resident there on that date. (2A) If the application or part of it relates to a matter in relation to which Article 18 of the 2007 Hague Convention applies, the court may not entertain that application or part of it except where permitted by Article 18. (2B) In subsection (2A), “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.

• (3) In section 35 (alteration of agreements by court during lives of parties)—

• (a) in subsection (1), omit “, subject to subsections (1A) and (3) below,”;

• (b) omit subsection (1A).

• (4) In section 52 (interpretation), in subsection (1), omit the definition of “the Maintenance Regulation”.

Amendment of the Domicile and Matrimonial Proceedings Act 1973

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• (1) The Domicile and Matrimonial Proceedings Act 1973 is amended as follows.

• (2) In section 5 (jurisdiction of High Court and family court)—

• (a) in subsection (1A)—

• (i) omit the definition of “the Council Regulation”;

• (ii) omit the definition of “Contracting State”;

• (b) in subsection (2) for the words from “if)—” to the end substitute “if) on the date of the application—

(a) both parties to the marriage are habitually resident in England and Wales; (b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there; (c) the respondent is habitually resident in England and Wales; (d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made; (e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made; (f) both parties to the marriage are domiciled in England and Wales; or (g) either of the parties to the marriage is domiciled in England and Wales.

• (c) in subsection (3) for the words from “if)—” to the end substitute “if) on the date of the application—

(a) both parties to the marriage are habitually resident in England and Wales; (b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there; (c) the respondent is habitually resident in England and Wales; (d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made; (e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made; (f) both parties to the marriage are domiciled in England and Wales; or (g) either of the parties to the marriage— (i) is domiciled in England and Wales; or (ii) died before the application was made and either was at death domiciled in England and Wales or had been habitually resident in England and Wales throughout the period of one year ending with the date of death.

• (d) omit subsection (6A).

• (3) In section 10 (ancillary and collateral orders) omit—

• (a) subsection (1C);

• (b) subsection (1D).

• (4) In Schedule 1 (staying of matrimonial proceedings (England and Wales)), in paragraph 9(1), omit “, other than proceedings governed by the Council Regulation,”.

Amendment of the Matrimonial Causes (Northern Ireland) Order 1978

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• (1) The Matrimonial Causes (Northern Ireland) Order 1978 is amended as follows.

• (2) In Article 2 (interpretation) omit the definition of “the Maintenance Regulation”.

• (3) In Article 37 (alteration of agreements by the court, or by a court of summary jurisdiction, during the lives of the parties)—

• (a) in paragraph (1), for “paragraphs (1A) and” substitute “ paragraph ”;

• (b) omit paragraph (1A).

• (4) In Article 49 (jurisdiction of court)—

• (a) in paragraph (2), for the words from “if)—” to the end substitute “if) on the date of the application—

(a) both parties to the marriage are habitually resident in Northern Ireland; (b) both parties to the marriage were last habitually resident in Northern Ireland and one of them continues to reside there; (c) the respondent is habitually resident in Northern Ireland; (d) the applicant is habitually resident in Northern Ireland and has resided there for at least one year immediately before the application was made; (e) the applicant is domiciled and habitually resident in Northern Ireland and has resided there for at least six months immediately before the application was made; (f) both parties to the marriage are domiciled in Northern Ireland; or (g) either of the parties to the marriage is domiciled in Northern Ireland.

• (b) in paragraph (3), for the words from “if)—” to the end substitute “if) on the date of the application—

(a) both parties to the marriage are habitually resident in Northern Ireland; (b) both parties to the marriage were last habitually resident in Northern Ireland and one of them continues to reside there; (c) the respondent is habitually resident in Northern Ireland; (d) the applicant is habitually resident in Northern Ireland and has resided there for at least one year immediately before the application was made; (e) the applicant is domiciled and habitually resident in Northern Ireland and has resided there for at least six months immediately before the application was made; (f) both parties to the marriage are domiciled in Northern Ireland; or (g) either of the parties to the marriage— (i) is domiciled in Northern Ireland; or (ii) died before the application was made and either was at death domiciled in Northern Ireland or had been habitually resident in Northern Ireland throughout the period of one year ending with the date of death.

• (c) omit paragraph (3A);

• (d) for paragraph (5) substitute—

(5) The court has jurisdiction to entertain an application for financial provision under Article 29 if (and only if)— (a) the applicant or the respondent is domiciled in Northern Ireland on the date of the application; (b) the applicant has been habitually resident there throughout the period of one year ending with that date; or (c) the respondent is resident there on that date. (5A) If the application or part of it relates to a matter in relation to which Article 18 of the 2007 Hague Convention applies, the court may not entertain that application or part of it except where permitted by Article 18.

• (e) in paragraph (7), omit “Subject to Article 19(1) of the Council Regulation,”;

• (f) for paragraph (8) substitute—

(8) In this Article “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.

• (5) In paragraph 9 of Schedule 1 (staying of matrimonial proceedings), in sub-paragraph (1), omit “, other than proceedings governed by the Council Regulation,”.

Amendment of the Domestic Proceedings (Northern Ireland) Order 1980

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In Article 32 (jurisdiction) of the Domestic Proceedings (Northern Ireland) Order 1980 —

• (a) in paragraph (1), omit “paragraph (1A) and to”;

• (b) omit paragraph (1A);

• (c) omit paragraph (6).

Amendment of the Magistrates’ Courts (Northern Ireland) Order 1981

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• (1) The Magistrates' Courts (Northern Ireland) Order 1981 is amended as follows.

• (2) In Article 86 (revocation, suspension, variation, etc., of orders for periodical payments), in paragraph (1A), omit sub-paragraph (a).

• (3) In Article 87 (remission of arrears and manner in which arrears to be paid)—

• (a) in paragraph (1A), omit sub-paragraph (a);

• (b) in paragraph (7), in the definition of “non-Northern Ireland maintenance order”—

• (i) at the end of paragraph (b) insert “ or ”;

• (ii) omit paragraph (d) and the “or” preceding it.

• (4) In Article 88 (nature of domestic proceedings), in paragraph (a), omit “or under 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”.

• (5) In Article 98 (enforcement of orders for periodical payment of money)—

• (a) in paragraph (1A), omit sub-paragraph (a);

• (b) in paragraph (11), omit sub-paragraph (bb);

• (c) in paragraph (13), omit sub-paragraph (a).