OpenLegislation

Matrimonial Causes Act 1973 in Scotland

1973 c. 18 · Enacted 23 May 1973 · Extends to United Kingdom

Not fully up to date. 2 changes made by later legislation have not yet been written into this text, which is revised to 2 August 2024.

See the changes not yet applied
ProvisionChangeMade by
s. 31extendedFamily Law Act 1996 Sch. 9 para. 6(1)
s. 31(7)-(7F)extendedFamily Law Act 1996 Sch. 9 para. 6(2)

An Act to consolidate certain enactments relating to matrimonial proceedings, maintenance agreements, and declarations of legitimacy, validity of marriage and British nationality, with amendments to give effect to recommendations of the Law Commission.

[23rd May 1973]I1

Annotations to the whole text

Commencement

I1

Act not in force at Royal Assent, see s. 55(2); Act wholly in force at 1.1.1974

Contents

  1. 2Supplemental provisions as to facts raising presumption of breakdown. Repealed
  2. 3Bar on applying for a divorce order within one year of marriage.
  3. 5Refusal of decree in five year separation cases on grounds of grave hardship to respondent. Repealed
  4. 7Consideration by the court of certain agreements or arrangements.
  5. 10Proceedings before divorce order made final: special protection for respondent.
  6. 12AGrounds on which a marriage converted from a civil partnership is void or voidable
  7. 12BThe period before nullity of marriage orders may be made final
  8. 15Application of sections 8 and 9 to proceedings for a nullity of marriage order
  9. 16Effect of annulment in case of voidable marriage.
  10. Other matrimonial suits
  11. 18Effects of judicial separation.
  12. ...
  13. 20Relief for respondent in divorce proceedings. Repealed
  14. 21Financial provision and property adjustment orders.
  15. 21APension sharing orders.
  16. 21CPension compensation: interpretation
  17. 22ZAOrders for payment in respect of legal services
  18. 22ZBMatters to which court is to have regard in deciding how to exercise power under section 22ZA
  19. 23Financial provision orders in connection with divorce proceedings, etc.
  20. 24BPension sharing orders in connection with divorce proceedings etc.
  21. 24CPension sharing orders: duty to stay.
  22. 24DPension sharing orders: apportionment of charges.
  23. 24FPension compensation sharing orders: duty to stay
  24. 24GPension compensation sharing orders: apportionment of charges
  25. 25GPension compensation: supplementary
  26. Financial provision in case of neglect to maintain
  27. Additional provisions with respect to financial provision and property adjustment orders
  28. Variation, discharge and enforcement of certain orders, etc.
  29. Consent orders
  30. Maintenance agreements
  31. 34Validity of maintenance agreements.
  32. 39Settlement, etc. made in compliance with a property adjustment order may be avoided on bankruptcy of settlor.
  33. 40AAppeals relating to pension sharing orders which have taken effect.
  34. 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repealed
  35. 46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repealed
  36. 49Parties to proceedings under this Act.
  37. 52AInterpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders
  38. 53Transitional provisions and savings.
  39. 54Consequential amendments and repeals.
  40. 55Citation, commencement and extent.
  41. Part I: Miscellaneous and General
  42. General transitional provisions and savings
  43. 1Paragraph 1
  44. 2Paragraph 2
  45. 3Paragraph 3
  46. 4Paragraph 4
  47. 5Paragraph 5
  48. 6Paragraph 6
  49. 7Paragraph 7
  50. Transitional provisions derived from the Act of 1965
  51. 8Paragraph 8 Repealed
  52. 9Paragraph 9
  53. 10Paragraph 10
  54. Part II: Preservation for limited Purposes of certain Provisions of previous Enactments
  55. Nullity
  56. 12Paragraph 12
  57. Succession on intestacy in case of judicial separation
  58. 13Paragraph 13
  59. Validation of certain void or voidable decrees
  60. 14Paragraph 14
  61. Part III: Assimilation in certain respects to Orders under this Act of Orders made, etc., under the Act of 1965, etc.
  62. Cesser on remarriage of orders made, etc., under the Act of 1965 and recovery of sums mistakenly paid thereafter
  63. 15Paragraph 15
  64. 16Paragraph 16
  65. Variation, etc., of certain orders made, etc., under the Act of 1965
  66. 17Paragraph 17
  67. 18Paragraph 18
  68. 19Paragraph 19
  69. Orders made under the Act of 1965 to count as orders under this Act for certain purposes
  70. 20Paragraph 20
  71. 21Paragraph 21
  72. Application of provisions of this Act with respect to enforcement of arrears and recovery of excessive payments to certain orders made, etc., under the Act of 1965
  73. 22Paragraph 22
  74. 23Paragraph 23
  75. Avoidance under this Act of transactions intended to defeat claims for relief and relief granted under the Act of 1965
  76. 24Paragraph 24
  77. Care and supervision of children
  78. 25Paragraph 25
  79. 26Paragraph 26
  80. Schedule 2: Consequential Amendments
  81. 3Paragraph 3

2Supplemental provisions as to facts raising presumption of breakdown.F1

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

3Bar on applying for a divorce order within one year of marriage.F4F1

(1)

F2An application for a divorce order may not be made before the expiration of the period of one year from the date of the marriage.

F3(2)

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

5Refusal of decree in five year separation cases on grounds of grave hardship to respondent.F1

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

7Consideration by the court of certain agreements or arrangements.

Provision may be made by rules of court for enabling the parties to a marriage, or either of them, on application made F1when proceedings for a divorce order are contemplated or have begun, to refer to the court any agreement or arrangement made or proposed to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected with, the F2proceedings, and for enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the agreement or arrangement and to give such directions, if any, in the matter as it thinks fit.

10Proceedings before divorce order made final: special protection for respondent.F6

F1(1)

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

F2(2)

The following provisions of this section apply where—

(a)

on an application for a divorce order a conditional order has been made and—

(i)

the conditional order is in favour of one party to a marriage, or

(ii)

the conditional order is in favour of both parties to a marriage but one of the parties has since withdrawn from the application, and

(b)

the respondent has applied to the court for consideration under subsection (3) of their financial position after the divorce.

(3)

Subject to subsection (4), the court hearing an application by the respondent under subsection (2) must not make the divorce order final unless it is satisfied—

(a)

that the applicant should not be required to make any financial provision for the respondent, or

(b)

that the financial provision made by the applicant for the respondent is reasonable and fair or the best that can be made in the circumstances.

(3A)

In making a determination under subsection (3) the court must consider all the circumstances including—

(a)

the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage, and

(b)

the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the applicant should that person die first.

(4)

The court may if it thinks fit makes the F3divorce order final notwithstanding the requirements of subsection (3) above if—

(a)

it appears that there are circumstances making it desirable that the F4order should be made final without delay, and

(b)

the court has obtained a satisfactory undertaking from the F5applicant that they will make such financial provision for the respondent as the court may approve.

12AGrounds on which a marriage converted from a civil partnership is void or voidableF1

(1)

This section applies to a marriage which has been converted, or is purported to have been converted, from a civil partnership under section 9 of the 2013 Act and regulations made under that section.

(2)

A marriage which results from the purported conversion of a void civil partnership is void.

(3)

A marriage which results from the conversion of a civil partnership is voidable if any of paragraphs (c) to (h) of section 12(1) applied at the date from which the marriage is treated as having subsisted in accordance with section 9(6) of the 2013 Act.

(4)

In this section, the “2013 Act” means the Marriage (Same Sex Couples) Act 2013.

12BThe period before nullity of marriage orders may be made finalF1

(1)

An order that annuls a marriage which is void or voidable (a “nullity of marriage order”)—

(a)

is, in the first instance, a conditional order, and

(b)

may not be made final before the end of the period of 6 weeks from the making of the conditional order.

(2)

The Lord Chancellor may by order made by statutory instrument amend this section so as to shorten or lengthen the period for the purposes of subsection (1)(b).

(3)

But the Lord Chancellor may not under subsection (2) lengthen the period so that it exceeds 6 months.

(4)

In a particular case the court dealing with the case may by order shorten the period that would otherwise be applicable for the purposes of subsection (1)(b).

(5)

A statutory instrument containing an order under subsection (2) is subject to annulment in pursuance of a resolution of either House of Parliament.

15Application of sections 8 and 9 to proceedings for a nullity of marriage orderF1

Section 8 (intervention of Queen's Proctor) and section 9 (proceedings before divorce order has been made final: general powers of court) apply in relation to proceedings for a nullity of marriage order as if for any reference in those sections to a divorce order there were substituted a reference to a nullity of marriage order.

16Effect of annulment in case of voidable marriage.F6

F1(1)

F2A nullity of marriage order granted in respect of a voidable marriage shall operate to annul the marriage only as respects any time after the F3order has been made final, and the marriage shall, F4notwithstanding the order, be treated as if it had existed up to that time.

F5(2)

Subsection (1) has effect in relation to a decree of nullity granted after 31 July 1971 as it has effect in relation to a nullity of marriage order, but with the substitution—

(a)

for “order has been made final,” of “decree has been made absolute,” and

(b)

for “notwithstanding the order,” of “notwithstanding the decree,

18Effects of judicial separation.

F1(1)

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

(2)

If while a decree of judicial separation F2or judicial separation order is in force and the separation is continuing either of the parties to the marriage dies intestate as respects all or any of his or her real or personal property, the property as respects which he or she died intestate shall devolve as if the other party to the marriage had then been dead.

(3)

Notwithstanding anything in section 2(1)(a) of the M1Matrimonial Proceedings (Magistrates’ Courts) Act 1960, a provision in force under an order made, or having effect as if made, under that section exempting one party to a marriage from the obligation to cohabit with the other shall not have effect as a decree of judicial separation for the purposes of subsection (2) above.

20Relief for respondent in divorce proceedings.F1

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

21Financial provision and property adjustment orders.

(1)

The financial provision orders for the purposes of this Act are the orders for periodical or lump sum provision available (subject to the provisions of this Act) under section 23 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family in connection with proceedings for divorce, nullity of marriage or judicial separation and under section 27(6) below on proof of neglect by one party to a marriage to provide, or to make a proper contribution towards, reasonable maintenance for the other or a child of the family, that is to say—

(a)

any order for periodical payments in favour of a party to a marriage under section 23(1)(a) or 27(6)(a) or in favour of a child of the family under section 23(1)(d), (2) or (4) or 27(6)(d);

(b)

any order for secured periodical payments in favour of a party to a marriage under section 23(1)(b) or 27(6)(b) or in favour of a child of the family under section 23(1)(e), (2) or (4) or 27(6)(e); and

(c)

any order for lump sum provision in favour of a party to a marriage under section 23(1)(c) or 27(6)(c) or in favour of a child of the family under section 23(1)(f), (2) or (4) or 27(6)(f);

and references in this Act (except in paragraphs 17(1) and 23 of Schedule 1 below) to periodical payments orders, secured periodical payments orders, and orders for the payment of a lump sum are references to all or some of the financial provision orders requiring the sort of financial provision in question according as the context of each reference may require.

(2)

The property adjustment orders for the purposes of this Act are the orders dealing with property rights available (subject to the provisions of this Act) under section 24 below for the purpose of adjusting the financial position of the parties to a marriage and any children of the family on or after the F1making of a divorce, nullity of marriage or judicial separation order, that is to say—

(a)

any order under subsection (1)(a) of that section for a transfer of property;

(b)

any order under subsection (1)(b) of that section for a settlement of property; and

(c)

any order under subsection (1)(c) or (d) of that section for a variation of settlement.

F2(3)

See also section 52A (interpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders).

21APension sharing orders.C1F1

(1)

For the purposes of this Act, a pension sharing order is an order which—

(a)

provides that one party’s—

(i)

shareable rights under a specified pension arrangement, or

(ii)

shareable state scheme rights,

be subject to pension sharing for the benefit of the other party, and

(b)

specifies the percentage value to be transferred.

(2)

In subsection (1) above—

(a)

the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation,

(b)

the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and

(c)

“ party ” means a party to a marriage.

21CPension compensation: interpretationF1

In this Part—

  • “PPF compensation” means compensation payable under the pension compensation provisions;

  • “the pension compensation provisions” means—

    1. (a)

      Chapter 3 of Part 2 of the Pensions Act 2004 (pension protection) and any regulations or order made under it,

    2. (b)

      Chapter 1 of Part 3 of the Pensions Act 2008 (pension compensation on divorce etc) and any regulations or order made under it, and

    3. (c)

      any provision corresponding to the provisions mentioned in paragraph (a) or (b) in force in Northern Ireland.

22ZAOrders for payment in respect of legal servicesF1

(1)

In proceedings for divorce, nullity of marriage or judicial separation, the court may make an order or orders requiring one party to the marriage to pay to the other (“the applicant”) an amount for the purpose of enabling the applicant to obtain legal services for the purposes of the proceedings.

(2)

The court may also make such an order or orders in proceedings under this Part for financial relief in connection with proceedings for divorce, nullity of marriage or judicial separation.

(3)

The court must not make an order under this section unless it is satisfied that, without the amount, the applicant would not reasonably be able to obtain appropriate legal services for the purposes of the proceedings or any part of the proceedings.

(4)

For the purposes of subsection (3), the court must be satisfied, in particular, that—

(a)

the applicant is not reasonably able to secure a loan to pay for the services, and

(b)

the applicant is unlikely to be able to obtain the services by granting a charge over any assets recovered in the proceedings.

(5)

An order under this section may be made for the purpose of enabling the applicant to obtain legal services of a specified description, including legal services provided in a specified period or for the purposes of a specified part of the proceedings.

(6)

An order under this section may—

(a)

provide for the payment of all or part of the amount by instalments of specified amounts, and

(b)

require the instalments to be secured to the satisfaction of the court.

(7)

An order under this section may direct that payment of all or part of the amount is to be deferred.

(8)

The court may at any time in the proceedings vary an order made under this section if it considers that there has been a material change of circumstances since the order was made.

(9)

For the purposes of the assessment of costs in the proceedings, the applicant's costs are to be treated as reduced by any amount paid to the applicant pursuant to an order under this section for the purposes of those proceedings.

(10)

In this section “legal services”, in relation to proceedings, means the following types of services—

(a)

providing advice as to how the law applies in the particular circumstances,

(b)

providing advice and assistance in relation to the proceedings,

(c)

providing other advice and assistance in relation to the settlement or other resolution of the dispute that is the subject of the proceedings, and

(d)

providing advice and assistance in relation to the enforcement of decisions in the proceedings or as part of the settlement or resolution of the dispute,

and they include, in particular, advice and assistance in the form of representation and any form of dispute resolution, including mediation.

(11)

In subsections (5) and (6) “specified” means specified in the order concerned.

22ZBMatters to which court is to have regard in deciding how to exercise power under section 22ZAF1

(1)

When considering whether to make or vary an order under section 22ZA, the court must have regard to—

(a)

the income, earning capacity, property and other financial resources which each of the applicant and the paying party has or is likely to have in the foreseeable future,

(b)

the financial needs, obligations and responsibilities which each of the applicant and the paying party has or is likely to have in the foreseeable future,

(c)

the subject matter of the proceedings, including the matters in issue in them,

(d)

whether the paying party is legally represented in the proceedings,

(e)

any steps taken by the applicant to avoid all or part of the proceedings, whether by proposing or considering mediation or otherwise,

(f)

the applicant's conduct in relation to the proceedings,

(g)

any amount owed by the applicant to the paying party in respect of costs in the proceedings or other proceedings to which both the applicant and the paying party are or were party, and

(h)

the effect of the order or variation on the paying party.

(2)

In subsection (1)(a) “earning capacity”, in relation to the applicant or the paying party, includes any increase in earning capacity which, in the opinion of the court, it would be reasonable to expect the applicant or the paying party to take steps to acquire.

(3)

For the purposes of subsection (1)(h), the court must have regard, in particular, to whether the making or variation of the order is likely to—

(a)

cause undue hardship to the paying party, or

(b)

prevent the paying party from obtaining legal services for the purposes of the proceedings.

(4)

The Lord Chancellor may by order amend this section by adding to, omitting or varying the matters mentioned in subsections (1) to (3).

(5)

An order under subsection (4) must be made by statutory instrument.

(6)

A statutory instrument containing an order under subsection (4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7)

In this section “legal services” has the same meaning as in section 22ZA.

23Financial provision orders in connection with divorce proceedings, etc.

(1)

F1On making a divorce, nullity of marriage or judicial separation order or at any time after making such an order (whether, in the case of a divorce or nullity of marriage order, before or after the order is made final), the court may make any one or more of the following orders, that is to say—

(a)

an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order;

(b)

an order that either party to the marriage shall secure to the other to the satisfaction of the court such periodical payments, for such term, as may be so specified;

(c)

an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified;

(d)

an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified;

(e)

an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(f)

an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified;

subject, however, in the case of an order under paragraph (d), (e) or (f) above, to the restrictions imposed by section 29(1) and (3) below on the making of financial provision orders in favour of children who have attained the age of eighteen.

(2)

The court may also, subject to those restrictions, make any one or more of the orders mentioned in subsection (1)(d), (e) and (f) above—

(a)

in any proceedings for divorce, nullity of marriage or judicial separation, before F2making a divorce order, nullity of marriage order or judicial separation order (as the case may be); and

(b)

where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal.

C1(3)

Without prejudice to the generality of subsection (1)(c) or (f) above—

(a)

an order under this section that a party to a marriage shall pay a lump sum to the other party may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section in his or her favour;

(b)

an order under this section for the payment of a lump sum to or for the benefit of a child of the family may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section in his favour to be met; and

(c)

an order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

(4)

The power of the court under subsection (1) or (2)(a) above to make an order in favour of a child of the family shall be exercisable from time to time; and where the court makes an order in favour of a child under subsection (2)(b) above, it may from time to time, subject to the restrictions mentioned in subsection (1) above, make a further order in his favour of any of the kinds mentioned in subsection (1)(d), (e)or (f) above.

(5)

Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under subsection (1)(a), (b) or (c) above on or after F3making a divorce or nullity of marriage order, neither the order under subsection (1)(a), (b) or (c) nor any settlement made in pursuance of it is to take effect unless the divorce or nullity of marriage order has been made final.

F4(6)

Where the court—

(a)

makes an order under this section for the payment of a lump sum; and

(b)

directs—

(i)

that payment of that sum or any part of it shall be deferred; or

(ii)

that that sum or any part of it shall be paid by instalments,

the court may order that the amount deferred or the instalments shall carry interest at such rate as may be specified by the order from such date, not earlier than the date of the order, as may be so specified, until the date when payment of it is due.

F5(7)

See also section 52A (interpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders).

24BPension sharing orders in connection with divorce proceedings etc.F1

(1)

F2On making a divorce or nullity of marriage order or at any time after making such an order (whether before or after the order is made final), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage.

(2)

A pension sharing order under this section is not to take effect unless the F3divorce or nullity of marriage order on or after which it is made has been made final.

(3)

A pension sharing order under this section may not be made in relation to a pension arrangement which—

(a)

is the subject of a pension sharing order in relation to the marriage, or

(b)

has been the subject of pension sharing between the parties to the marriage.

(4)

A pension sharing order under this section may not be made in relation to shareable state scheme rights if—

(a)

such rights are the subject of a pension sharing order in relation to the marriage, or

(b)

such rights have been the subject of pension sharing between the parties to the marriage.

(5)

A pension sharing order under this section may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement.

(F46)

See also section 52A (interpretation of certain references to divorce orders, nullity of marriage orders and judicial separation orders).

24CPension sharing orders: duty to stay.F1

(1)

No pension sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

(2)

The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

24DPension sharing orders: apportionment of charges.F1

If a pension sharing order relates to rights under a pension arrangement, the court may include in the order provision about the apportionment between the parties of any charge under section 41 of the Welfare Reform and Pensions Act 1999 (charges in respect of pension sharing costs), or under corresponding Northern Ireland legislation.

24FPension compensation sharing orders: duty to stayF1

(1)

No pension compensation sharing order may be made so as to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor.

(2)

The power to make regulations under this section shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

24GPension compensation sharing orders: apportionment of chargesF1

The court may include in a pension compensation sharing order provision about the apportionment between the parties of any charge under section 117 of the Pensions Act 2008 (charges in respect of pension compensation sharing costs), or under corresponding Northern Ireland legislation.

25GPension compensation: supplementaryF1

(1)

The Lord Chancellor may by regulations—

(a)

make provision, in relation to any provision of section 25F which authorises the court making an order under section 23 to require the Board of the Pension Protection Fund to make a payment for the benefit of the other party, as to the person to whom, and the terms on which, the payment is to be made;

(b)

make provision, in relation to payment under a mistaken belief as to the continuation in force of a provision included by virtue of section 25F in an order under section 23, about the rights or liabilities of the payer, the payee or the person to whom the payment was due;

(c)

require notices to be given in respect of changes of circumstances relevant to orders under section 23 which include provision made by virtue of section 25F;

(d)

make provision for the Board of the Pension Protection Fund to be discharged in prescribed circumstances from a requirement imposed by virtue of section 25F;

(e)

make provision about calculation and verification in relation to the valuation of PPF compensation for the purposes of the court's functions in connection with the exercise of any of its powers under this Part.

(2)

Regulations under subsection (1)(e) may include—

(a)

provision for calculation or verification in accordance with guidance from time to time prepared by a prescribed person;

(b)

provision by reference to regulations under section 112 of the Pensions Act 2008.

(3)

Regulations under subsection (1) may make different provision for different cases.

(4)

The power to make regulations under subsection (1) is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(5)

In this section and section 25F—

  • “ the party with compensation rights ” means the party to the marriage who is or is likely to be entitled to PPF compensation, and “ the other party ” means the other party to the marriage;

  • “ prescribed ” means prescribed by regulations.

34Validity of maintenance agreements.

(1)

If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then—

(a)

that provision shall be void; but

(b)

any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to sections 35 and 36 below), be binding on the parties to the agreement.

(2)

In this section and in section 35 below—

  • “maintenance agreement” means any agreement in writing made, whether before or after the commencement of this Act, between the parties to a marriage, being—

(a)

an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or

(b)

a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements;

“financial arrangements” means provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family.

39Settlement, etc. made in compliance with a property adjustment order may be avoided on bankruptcy of settlor.C1

The fact that a settlement or transfer of property had to be made in order to comply with a property adjustment order shall not prevent that settlement or transfer from being F1a transaction in respect of which an order may be made under F2section 339 or 340 of the M1Insolvency Act 1986 (transactions at an undervalue and preferences.)

40AAppeals relating to pension sharing orders which have taken effect.F1

(1)

Subsections (2) and (3) below apply where an appeal against a pension sharing order is begun on or after the day on which the order takes effect.

(2)

If the pension sharing order relates to a person’s rights under a pension arrangement, the appeal court may not set aside or vary the order if the person responsible for the pension arrangement has acted to his detriment in reliance on the taking effect of the order.

(3)

If the pension sharing order relates to a person’s shareable state scheme rights, the appeal court may not set aside or vary the order if the Secretary of State has acted to his detriment in reliance on the taking effect of the order.

(4)

In determining for the purposes of subsection (2) or (3) above whether a person has acted to his detriment in reliance on the taking effect of the order, the appeal court may disregard any detriment which in its opinion is insignificant.

(5)

Where subsection (2) or (3) above applies, the appeal court may make such further orders (including one or more pension sharing orders) as it thinks fit for the purpose of putting the parties in the position it considers appropriate.

(6)

Section 24C above only applies to a pension sharing order under this section if the decision of the appeal court can itself be the subject of an appeal.

(7)

In subsection (2) above, the reference to the person responsible for the pension arrangement is to be read in accordance with section 25D(4) above.

45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F1

46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .F1

49Parties to proceedings under this Act.

F1(1)

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

(2)

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

(3)

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

(4)

Rules of court may make provisionF2... with respect to the joinder as parties to proceedings under this Act of persons involved in allegations of F3... improper conduct made in those proceedings, and with respect to the dismissal from such proceedings of any parties so joined; and rules of court made by virtue of this subsection may make different provision for different cases.

(5)

F4In every case in which the court considers, in the interest of any person not already a party to the suit, that that person should be made a party to the suit, the court may if it thinks fit allow that person to intervene upon such terms, if any, as the court thinks just.

52AInterpretation of certain references to divorce orders, nullity of marriage orders and judicial separation ordersF1

(1)

In sections 21(2), 23(1) and (5), 24(1) and (3), 24A(3), 24B(1) and (2), 24E(1) and (2), 25A(1) and (3), 28(1) to (2) and 31—

(a)

a reference to a divorce order includes a decree of divorce,

(b)

a reference to a nullity of marriage order includes a decree of nullity of marriage;

(c)

a reference to a judicial separation order includes a decree of judicial separation;

(d)

a reference to making includes granting;

(e)

a reference to an order being made final includes a decree being made absolute.

53Transitional provisions and savings.

Schedule 1 to this Act shall have effect for the purpose of—

(a)

the transition to the provisions of this Act from the law in force before the commencement of this Act;

(b)

the preservation for limited purposes of certain provisions superseded by provisions of this Act or by enactments repealed and replaced by this Act; and

(c)

the assimilation in certain respects to orders under this Act of orders made, or deemed to have been made, under the M1Matrimonial Causes Act 1965.

54Consequential amendments and repeals.

(1)

Subject to the provisions of Schedule 1 to this Act—

(a)

the enactments specified in Schedule 2 to this Act shall have effect subject to the amendments specified in that Schedule, being amendments consequential on the provisions of this Act or on enactments repealed by this Act; and

F1(b)

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

(2)

The amendment of any enactment by Schedule 2 to this Act shall not be taken as prejudicing the operation of F2sections 16(1) and 17(2)(a) of the M1Interpretation Act 1978 (which relates to the effect of repeals).

55Citation, commencement and extent.

(1)

This Act may be cited as the Matrimonial Causes Act 1973.

C1(2)

This Act shall come into force on such day as the Lord Chancellor may appoint by order made by statutory instrument.

(3)

Subject to the provisions of paragraphs 3(2) F1... of Schedule 2 below, this Act does not extend to Scotland or Northern Ireland.

1

Without prejudice to the provisions of F1sections 16(1) and 17(2)(a) of the Interpretation Act 1978 (which relates to the effect of repeals)—

(a)

nothing in any repeal made by this Act shall affect any order or rule made, direction given or thing done, or deemed to have been made, given or done, under any enactment repealed by this Act, and every such order, rule, direction or thing shall, if in force at the commencement of this Act, continue in force and, so far as it could have been made, given or done under this Act, be deemed to have been made, given or done under the corresponding provisions of this Act; and

(b)

any reference in any document (including an enactment) to any enactment repealed by this Act, whether a specific reference or a reference to provisions of a description which includes, or apart from any repeal made by this Act includes, the enactment so repealed, shall be construed as a reference to the corresponding enactment in this Act.

2

Without prejudice to paragraph 1 above, but subject to paragraph 3 below, any application made or proceeding begun, or deemed to have been made or begun, under any enactment repealed by this Act, being an application or proceeding which is pending at the commencement of this Act, shall be deemed to have been made or begun under the corresponding provision of this Act.

3

Nothing in Part I of this Act shall apply in relation to any petition for divorce or judicial separation presented before 1st January 1971 and notwithstanding any repeal or amendment made by this Act the M1Matrimonial Causes Act 1965 (hereafter in this Schedule referred to as the Act of 1965) and any rules of court made for the purposes of that Act shall continue to have effect in relation to proceedings on any such petition which are pending at the commencement of this Act as they had effect immediately before the commencement of this Act.

4

Notwithstanding any repeal or amendment made by this Act, the Act of 1965 and any rules of court made for the purposes of that Act shall continue to have effect in relation to—

(a)

any proceedings on a petition for damages for adultery or for restitution of conjugal rights presented before 1st January 1971 which are pending at the commencement of this Act, and

(b)

any proceedings for relief under section 21 or 34(1)(c) of the Act of 1965 brought in connection with proceedings on a petition for restitution of conjugal rights so presented, being proceedings for relief which are themselves pending at the commencement of this Act,

as they had effect immediately before the commencement of this Act; and nothing in Schedule 2 below shall affect the operation of any other enactment in relation to any such proceedings.

5

Nothing in any repeal made by this Act shall affect any order made, or deemed to have been made, under the Act of 1965 which was continued in force by paragraph 1 of Schedule 1 to the M1Matrimonial Proceedings and Property Act 1970 notwithstanding the repeal by the last-mentioned Act of the provision of the Act of 1965 under which the order had effect, and every such order shall, if in force at the commencement of this Act, continue in force subject to the provisions of this Act.

6

Nothing in sections 11 to 14 or 16 of this Act affects any law or custom relating to the marriage of members of the Royal Family.

7

Nothing in section 50(1)(a) or (c) above affects—

(a)

any rules of court made under the M1Supreme Court of Judicature (Consolidation) Act 1925 for the purposes of proceedings under section 39 of the Act of 1965 and having effect by virtue of paragraph 1(b) above in relation to proceedings under section 45 above;

(b)

any rules of court so made for the purposes of proceedings under section 17 of the M2Married Women’s Property Act 1882 or under section 1 of the M3Matrimonial Homes Act 1967; or

(c)

any rules of court so made for the purposes of the exercise by the High Court of its jurisdiction to grant declaratory relief in proceedings in which the only substantive relief sought is a declaration with respect to a person’s matrimonial status;

but rules of court made under section 50 may revoke any rules of court made under the said Act of 1925 in so far as they apply for any such purposes.

8F1

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

9

Where the party chargeable under a maintenance agreement within the meaning of section 34 above died before 17th August 1957, then—

(a)

subsection (1) of that section shall not apply to the agreement unless there remained undistributed on that date assets of that party’s estate (apart from any property in which he had only a life interest) representing not less than four-fifths of the value of that estate for probate after providing for the discharge of the funeral, testamentary and administrative expenses, debts and liabilities payable thereout (other than any liability arising by virtue of that subsection); and

(b)

nothing in that subsection shall render liable to recovery, or impose any liability upon the personal representatives of that party in respect of, any part of that party’s estate which had been distributed before that date.

10

No right or liability shall attach by virtue of section 34(1) above in respect of any sum payable under a maintenance agreement within the meaning of that section in respect of a period before 17th August 1957.

12

Where a decree of nullity was granted on or before 31st July 1971 in respect of a voidable marriage, any child who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled shall be deemed to be their legitimate child.

13

Section 18(2) above shall not apply in a case where the death occurred before 1st August 1970, but section 20(3) of the Act of 1965 (which provides that certain property of a wife judicially separated from her husband shall devolve, on her death intestate, as if her husband had then been dead) shall continue to apply in any such case.

14

Any decree of divorce, nullity of marriage or judicial separation which, apart from this paragraph, would be void or voidable on the ground only that the provisions of section 33 of the Act of 1965 (restriction on the making of decrees of dissolution or separation where children are affected) or of section 2 of the M1Matrimonial Proceedings (Children) Act 1958 (corresponding provision replaced by section 33) had not been complied with when the decree was made absolute or granted, as the case may be, shall be deemed always to have been valid unless—

(a)

the court declared the decree to be void before 1st January 1971, or

(b)

in proceedings for the annulment of the decree pending at that date the court has before the commencement of this Act declared or after that commencement declares the decree to be void.

15

(1)

An order made, or deemed to have been made, under section 16(1)(a) or (b) of the Act of 1965 (including either of those paragraphs as applied by section 16(3) or by section 19) shall, notwithstanding anything in the order, cease to have effect on the remarriage after the commencement of this Act of the person in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage.

(2)

An order for the payment of alimony made, or deemed to have been made, under section 20 of the Act of 1965, and an order made, or deemed to have been made, under section 21 or 22 of that Act shall, if the marriage of the parties to the proceedings in which the order was made was or is subsequently dissolved or annulled but the order continues in force, cease to have effect on the remarriage after the commencement of this Act of the party in whose favour the order was made, except in relation to any arrears due under it on the date of the remarriage.

16

Section 38 above shall apply in relation to an order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) and by section 19), 20(1), 21 or 22 of the Act of 1965 as it applies in relation to a periodical payments or secured periodical payments order in favour of a party to a marriage.

17

(1)

Subject to the provisions of this paragraph, section 31 above shall apply, as it applies to the orders mentioned in subsection (2) thereof, to an order (other than an order for the payment of a lump sum) made or deemed to have been made under any of the following provisions of the Act of 1965, that is to say—

(a)

section 15 (except in its application to proceedings for restitution of conjugal rights);

(b)

section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(c)

section 20(1) and section 17(2) as applied by section 20(2);

(d)

section 22;

(e)

section 34(1)(a) or (b), in so far as it relates to the maintenance of a child, and section 34(3).

(2)

Subject to the provisions of this paragraph, the court hearing an application for the variation of an order made or deemed to have been made under any of the provisions of the Act of 1965 mentioned in sub-paragraph (1) above shall have power to vary that order in any way in which it would have power to vary it had the order been made under the corresponding provision of Part II of this Act.

(3)

Section 31, as it applies by virtue of sub-paragraph (1) above, shall have effect as if for subsections (4), (5) and (6) there were substituted the following subsections—

“(4)

The court shall not exercise the powers conferred by this section in relation to an order made or deemed to have been made under section 17(2) of the Act of 1965, as applied by section 20(2) of that Act, in connection with the grant of a decree of judicial separation except on an application made in proceedings—

(a)

for the rescission of that decree, or

(b)

for the dissolution of the marriage in question.

(5)

No order for the payment of a lump sum and no property adjustment order shall be made on an application for the variation of any order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) or by section 19), 20(1), 22, 34(1)(a) or (b) or 34(3) of the Act of 1965.

(6)

In the case of an order made or deemed to have been made under section 16(1) (including that subsection as applied by section 16(3) or by section 19), 22 or 34(3) of the Act of 1965 and requiring a party to a marriage to secure an annual sum or periodical payments to any other person, an application under this section relating to that order may be made after the death of the person liable to make payments under the order by the person entitled to the payments or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in regard to the estate of that person is first taken out”;

and in that section, as it so applies, the reference in subsection (8) to a secured periodical payments order shall be construed as a reference to any such order as is mentioned in subsection (6).

(4)

In relation to an order made before 16th December 1949 on or after granting a decree of divorce or nullity of marriage and deemed, by virtue of paragraph 1 of Schedule 1 to the Act of 1965, to have been made under section 16(1)(a) of that Act (secured provision), the powers conferred by this paragraph shall not be exercised unless the court is satisfied that the case is one of exceptional hardship which cannot be met by discharge, variation or suspension of any other order made by reference to that decree, being an order made, or deemed by virtue of that paragraph to have been made, under section 16(1)(b) of that Act (unsecured periodical payments).

18

(1)

Subsections (1) and (3) of section 31 above shall apply to an order made or deemed to have been made under section 15 of the Act of 1965 in its application to proceedings for restitution of conjugal rights, or under section 21 or 34(1)(c) of that Act, as they apply to the orders mentioned in subsection (2) of section 31.

(2)

In exercising the powers conferred by virtue of this paragraph the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates.

19

Section 42(7) above shall apply in relation to an order for the custody or education of a child made or deemed to have been made under section 34 of the Act of 1965, and in relation to an order for the custody of a child made or deemed to have been made under section 35 of that Act, as it applies in relation to an order made under section 42.

20

The power of the court under section 23(1) or (2)(a) or 42(1)(a) above to make from time to time a financial provision order or, as the case may be, an order for custody or education in relation to a child of the family shall be exercisable notwithstanding the making of a previous order or orders in relation to the child under section 34(1)(a) of the Act of 1965; and where the court has made an order in relation to a child under section 34(1)(b) of that Act sections 23(4) and 42(6) above shall apply respectively in relation to that child as if the order were an order made under section 23(2)(b) or section 42(1)(b), as the case may be.

21

Where the court has made an order under section 22 of the Act of 1965 the court shall have the like power to make orders under section 42 above with respect to the custody of any child of the family as it has where it makes an order under section 27 above.

22

Section 32 above shall apply in relation to the enforcement, by proceedings begun after 1st January 1971 (whether before or after the commencement of this Act), of the payment of arrears due under an order made, or deemed to have been made, under any of the following provisions of the Act of 1965, that is to say—

(a)

section 15;

(b)

section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(c)

section 20(1);

(d)

section 21;

(e)

section 22;

(f)

section 34(1), in so far as it relates to the maintenance of a child, and section 34(3);

as it applies in relation to the enforcement of the payment of arrears due under any such order as is mentioned in that section.

23

Section 33 above shall apply to an order (other than an order for the payment of a lump sum) made or deemed to have been made under any of the provisions of the Act of 1965 mentioned in paragraph 22 above as it applies to the orders mentioned in section 33(2).

24

(1)

Section 37 above shall apply in relation to proceedings for relief under section 21 or 34(1)(c) of the Act of 1965 continuing by virtue of paragraph 4(b) above as it applies in relation to proceedings for relief under any of the provisions of this Act specified in section 37(1).

(2)

Without prejudice to sub-paragraph (1) above, section 37 shall also apply where an order has been obtained under any of the following provisions of the Act of 1965, that is to say—

(a)

section 16(1) (including that subsection as applied by section 16(3) and by section 19);

(b)

section 17(2) (including that subsection as applied by section 20(2));

(c)

section 20(1);

(d)

section 21;

(e)

section 22;

(f)

section 24;

(g)

section 31;

(h)

section 34(1), in so far as it relates to the maintenance of a child, and section 34(3);

(i)

section 35;

as it applies where an order has been obtained under any of the provisions of this Act specified in section 37(1).

25

(1)

Sections 43 and 44 above shall apply where the court has jurisdiction by virtue of paragraph 4(b) above to make an order for the custody of a child under section 34(1)(c) of the Act of 1965 as they apply where the court has jurisdiction to make an order for custody under Part III of this Act, but as if the reference in section 43(2) to a financial provision order in favour of the child were a reference to an order for payments for the maintenance and education of the child.

(2)

Without prejudice to the effect of paragraph 1(a) of this Schedule in relation to an order made under section 36 or 37 of the Act of 1965 which could have been made under section 43 or, as the case may be, section 44 above, any order made under section 36 or 37 of that Act by virtue of the jurisdiction of the court to make an order for the custody of a child under section 34(1)(c) of that Act shall be deemed to have been made under section 43 or 44 above, as the case may require.

26

Section 44(4) above shall apply in relation to the jurisdiction possessed by a court to vary an order made or deemed to have been made with respect to a child’s custody, maintenance or education under Part III of the Act of 1965 as it applies in relation to the jurisdiction possessed by a court to vary any financial provision order in a child’s favour and any order made with respect to a child’s custody or education under Part III of this Act.

3

(1)

In section 16 of the M1Maintenance Orders Act 1950 (orders enforceable under Part II of that Act)—

(a)

in subsection (2)(a) for sub-paragraph (i) there shall be substituted the following sub-paragraph:—

“(i)

sections 15 to 17, 19 to 22, 30, 34 and 35 of the Matrimonial Causes Act 1965 and sections 22, 23(1), (2) and (4) and 27 of the Matrimonial Causes Act 1973”; and

(b)

in subsection (2)(c), for sub-paragraph (v) there shall be substituted the following sub-paragraph:—

“(v)

any enactment of the Parliament of Northern Ireland containing provisions corresponding with section 22(1), 34 or 35 of the Matrimonial Causes Act 1965, with section 22, 23(1), (2) or (4) or 27 of the Matrimonial Causes Act 1973, or with section 12(2) of the Guardianship of Minors Act 1971”.

(2)

Sub-paragraph (1) above extends to Scotland and Northern Ireland, and the references to section 16(2)(c) of the M2Maintenance Orders Act 1950 in paragraph 8 of Schedule 8 to the M3Administration of Justice Act 1970 and paragraph 9 of Schedule 1 to the M4Attachment of Earnings Act 1971 shall be construed as references to section 16(2)(c) as amended by sub-paragraph (1)(b) above.