SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

JUDGMENT OF SHERIFF WILLIAM HOLLIGAN

in causa

PURSUER K

against

DEFENDER S

ACT: Crawford, Solicitor.

KIRKCALDY 6th September 2007.

[1] In this action the pursuer sought a declarator of nullity of marriage. The action was undefended and came before me for decree on the basis of affidavit evidence. The pursuer is designed as having her habitual residence within the jurisdiction of this court. The defender is designed as residing in London.

[2] When I came to consider the grant of decree a number of issues arose which I drew to the attention of the solicitor for the pursuer. In due course the solicitor for the pursuer did not insist on decree and invited me to dismiss the action which I did. However, in view of the issue of jurisdiction which arose I have written this short Note.

[3] Section 4 of the Family Law (Scotland) Act 2006 ("the 2006 Act") purports to extend the jurisdiction of the sheriff court to include declarators of nullity of marriage. It does so by amending section 5(1) of the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act") so as to delete the words "(except declarators of marriage or nullity of marriage") where they appear in that section. Prior to the enactment of this section, the Court of Session had exclusive jurisdiction in relation to such declarators. Section 7 of the Domicile and Matrimonial Proceedings Act 1973 ("the 1973 Act") deals with the jurisdiction of the Court of Session in relation to such actions and in particular s7(3A). Section 8 of the 1973 Act deals with the jurisdiction of the sheriff court in relation to a number of family proceedings. There is no direct reference in section 8 to nullity of marriage nor does there appear to be any amendment thereto made by the 2006 Act. As far as I can tell there is no other provision made in the 2006 Act for the jurisdiction of the sheriff court in relation to declarators of nullity of marriage in the sheriff court other than the amendment to the 1907 Act to which I have referred. No other basis for jurisdiction was suggested to me. The result is that there appears to be, at least, some uncertainty over the jurisdiction of the sheriff court in such matters, particularly where, as here, the defender is not domiciled within the jurisdiction of this court.