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Sheriff Courts (Scotland) Act 1907

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Sheriff Courts (Scotland) Act 1907, CHAPTER 33 is up to date with all changes known to be in force on or before 30 November 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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CHAPTER 33S FAMILY ACTIONS

PART IS GENERAL PROVISIONS
Intepretation of this ChapterS

33.1.(1)In this Chapter, “family action” means—

(a)an action of divorce;

(b)an action of separation;

(c)an action of declarator of legitimacy;

(d)an action of declarator of illegitimacy;

(e)an action of declarator of parentage;

(f)an action of declarator of non-parentage;

(g)an action of declarator of legitimation;

[F1(h)an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.), except–

(i)an application for the appointment of a judicial factor mentioned in section 11(2)(g) of the Act of 1995 to which Part I of the Act of Sederunt (Judicial Factors Rules) 1992 applies; F2...

F3(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(i)an action of affiliation and aliment;

(j)an action of, or application for or in respect of, aliment;

(k)an action or application for financial provision after a divorce or annulment in an overseas country within the meaning of Part IV of the M1Martimonial and Family Proceedings Act 1984;

(l)an action or application for an order under the Act of 1981;

(m)an application for the variation or recall of an order mentioned in section 8(1) of the M2Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.

[F4(n)an action of declarator of marriage;

(o)an action of declarator of nullity of marriage;]

[F5(p)an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973;]

[F6(q)an application under section 28 or 29 of the Act of 2006 (financial provision for former co-habitants).]

[F7(r)an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.]

(2)In this Chapter, unless the context otherwise requires—

  • “the Act of 1975” means the M3Children Act 1975;

  • “the Act of 1976” means the M4Divorce (Scotland) Act 1976;

  • “the Act of 1981” means the M5Matrimonial Homes (Family Protection) (Scotland) Act 1981;

  • “the Act of 1985” means the M6Family Law (Scotland) Act 1985;

  • [F8“the Act of 1995” means the Children (Scotland) Act 1995;

  • [F9“the Act of 2006” means the Family Law (Scotland) Act 2006;]

  • “contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;]

  • [F10“full gender recognition certificate” and “interim gender recognition certificate” mean the certificates issued as such under section 4 or 5 of the Gender Recognition Act 2004 F11;

  • “Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Gender Recognition Act 2004;]

  • [F12“incapable” means incapable, by reason of mental disorder, of—

    (a)

    acting;

    (b)

    making decisions;

    (c)

    communicating decisions;

    (d)

    understanding decisions; or

    (e)

    retaining the memory of decisions,

    but a person is not incapable by reason only of a lack of deficiency in a faculty of communication where that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);]

  • F13. . .

  • [F14“local authority” means a council constituted under section 2 of the M7Local Government etc. (Scotland) Act 1994;]

  • [F15“mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003]

  • “order for financial provision” means, except in Part VII of this Chapter (financial provision after overseas divorce or annulment), an order mentioned in section 8(1) of the Act of 1985;

  • [F16“parental responsibilities” has the meaning assigned in section 1(3) of the Act of 1995;

  • “parental rights” has the meaning assigned in section 2(4) of the Act of 1995;

  • “residence order” has the meaning assigned in section 11(2)(c) of the Act of 1995;

  • “section 11 order” means an order under section 11 of the Act of 1995.]

(3)For the purposes of rules 33.2 (averments in actions of divorce or separation about other proceed ings) and 33.3 (averments where [F17section 11 order] sought) and, in relation to proceedings in another jurisdiction, Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973M8 (sisting of consistorial actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Textual Amendments

F1Sch. 1 rule 33.1(1)(h) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(a)

F2Word in Sch. 1 rule 33.01(1)(h)(i) omitted (4.4.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (S.S.I. 2011/193), paras. 1(1), 13(2)(a) (with para. 20)

F8Sch. 1 rule 33.1(2): definitions of "the Act of 1995" and "contact order" inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(b)(i)

F10Sch. 1 rule 33.1(2): Definition of "full gender recognition certificate" and "interim gender recognition certificate" inserted (4.4.2005) by Act of Sederunt (Ordinary Cause Rules) Amendment (Gender Recognition Act 2004) 2005 (S.S.I. 2005/189), para. 2(2)

F13Sch. 1 rule 33.1(2): definition of "child" omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(b)(ii)

F14Sch. 1 rule 33.1(2): definition of "local authority" substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(b)(iii)

F16Sch. 1 rule 33.1(2): definitions of "parental responsibilities", "parental", "residence order" and "section 11 order" substituted for definition of "parental rights" (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(b)(iv)

F17Words in Sch. 1 rule 33.1(3) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 4(c)

Marginal Citations

[F18Averments in certain family actions about other proceedings]S

33.2.(1)This rule applies to an action of divorce [F19, separation, declarator of marriage or declarator of nullity of marriage].

(2)In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ—

(a)whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage to which the initial writ relates or are capable of affecting its validity or subsistence; and

(b)where such proceedings are continuing—

(i)the court, tribunal or authority before which the proceedings have been commenced;

(ii)the date of commencement;

(iii)the names of the parties;

(iv)the date, or expected date of any proof (or its equivalent) in the proceedings; and

(v)such other facts as may be relevant to the question of whether or not the action before the sheriff should be sisted under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973 [F20or Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility] [F21or the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19th October 1996.]

(3)Where—

(a)such proceedings are continuing;

(b)the action before the sheriff is defended; and

(c)either—

(i)the initial writ does not contain the statement referred to in paragraph (2)(a), or

(ii)the particulars mentioned in paragraph (2)(b) as set out in the initial writ are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(b).

Textual Amendments

[F22Averments where section 11 order sought]S

33.3.(1)A party to a family action, who makes an application in that [F23action for a section 11 order] in respect of a child shall include in his pleadings—

(a)where that action is an action of divorce [F24, separation or declarator of nullity of marriage], averments giving particulars of any other proceedings known to him, whether in Scotland or elsewhere and whether concluded or not, which relate to the child in respect of whom the [F25section 11 order] is sought;

(b)in any other family action—

(i)the averments mentioned in paragraph (a); and

(ii)averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the marriage of the parents of that child.

[F26(c)where the party seeks an order such as is mentioned in any of paragraphs (a) to (e) of subsection (2) of that section, an averment that no permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007) is in force in respect of the child]

(2)Where such other proceedings are continuing or have taken place and the averments of the applicant for such a [F25section 11 order]—

(a)do not contain particulars of the other proceedings, or

(b)contain particulars which are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any [F27party] to the family action shall include such particulars or such further or correct particulars as are known to him.

(3)In paragraph 1(b)(ii), “child” includes a child of the family within the meaning assigned in section 42(4) of the Family Law Act 1986.

Textual Amendments

F22Words in Sch. 1 rule 33.3 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 5(a)

F23Words in Sch. 1 rule 33.3(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 5(b)

F24Words in Sch. 1 rule 33.3(1)(a) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), paras. 1, 2(16)

F25Words in Sch. 1 rule 33.3(1)(a)(2) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 5(c)

F27Word in Sch. 1 rule 33.3(2) substituted (1.11.1996) by S.I. 1996/2445, para. 3(44)

Averments where identity or address of person not knownS

33.4.In a family action, where the identity or address of any person referred to in rule 33.7 as a person in respect of whom a warrant for intimation requires to be applied for is not known and cannot reasonably be ascertained, the party required to apply for the warrant shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to ascertain the identity or address, as the case may be, of that person.

Averments about maintenance ordersS

33.5.In a family action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom, a maintenance order (within the meaning of section 106 of the M9Debtors (Scotland) Act 1987) has been granted in favour of or against that party or of any other person in respect of whom the order is sought.

Marginal Citations

Averments where aliment or financial provision soughtS

33.6.(1)In this rule—

  • “the Act of 1991” means the M10Child Support Act 1991;

  • “child” has the meaning assigned in section 55 of the Act of 1991;

  • “crave relating to aliment” means—

    (a)

    for the purposes of paragraph (2), a crave for decree of aliment in relation to a child or for recall or variation of such a decree; and

    (b)

    for the purposes of paragraph (3), a crave for decree of aliment in relation to a child or for recall or variation of such a decree or for the variation or termination of an agreement on aliment in relation to a child;

  • “ [F28“maintenance calculation”]” has the meaning assigned in section [F2954] of the Act of 1991.

(2)A family action containing a crave relating to aliment and to which section 8(6), (7), (8) or (10) of the Act of 1991 (top up maintenance orders) applies shall—

(a)include averments stating, where appropriate—

(i)that a maintenance [F30calculation] under section 11 of that Act (maintenance assessments) is in force;

(ii)the date of the maintenance [F30calculation];

(iii)the amount and frequency of periodical payments of child support maintenance fixed by the maintenance [F30calculation]; and

(iv)the grounds on which the sheriff retains jurisdiction under section 8(6), (7), (8) or (10) of that Act; and

(b)unless the sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the party intimating the making of the maintenance [F30calculation] referred to in sub-paragraph (a).

(3)A family action containing a crave relating to aliment, and to which section 8(6), (7), (8) or (10) of the Act of 1991 does not apply, shall include averments stating—

(a)that the habitual residence of the absent parent, person with care or qualifying child, within the meaning of section 3 of that Act, is furth of the United Kingdom;

(b)that the child is not a child within the meaning of section 55 of that Act; or

(c)where the action is lodged for warranting before 7th April 1997, the grounds on which the sheriff retains jurisdiction.

(4)In an action for declarator of non-parentage or illegitimacy—

(a)the initial writ shall include an article of condescendence stating whether the pursuer previously has been alleged to be the parent in an application for a maintenance [F30calculation] under section 4, 6 or 7 of the Act of 1991 (applications for maintenance [F30calculation]); and

(b)where an allegation of paternity has been made against the pursuer, the Secretary of State shall be named as a defender in the action.

(5)A family action involving parties in respect of whom a decision has been made in any application, review or appeal under the Act of 1991 relating to any child of those parties, shall—

(a)include averments stating that such a decision has been made and giving details of that decision; and

(b)unless the sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

Textual Amendments

Marginal Citations

Averments where divorce sought on ground of issue of interim gender recognition certificateS

[F3133.6ZA.(1)This rule applies to an action of divorce in which divorce is sought on the ground that an interim gender recognition certificate has been issued to either party.

(2)In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ—

(a)where the pursuer is the party to whom the interim gender recognition certificate was issued, whether or not the Gender Recognition Panel has issued a full gender recognition certificate to the pursuer, and

(b)where the defender is the party to whom the interim gender recognition certificate was issued, whether—

(i)since the issue of the interim gender recognition certificate, the pursuer has made a statutory declaration consenting to the marriage continuing, and

(ii)the Gender Recognition Panel has given the pursuer notice of the issue of a full gender recognition certificate to the defender.]

Textual Amendments

Application by survivor for provision on intestacyS

[F3233.6A.(1)In an action for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy), the pursuer shall call the deceased’s executor as a defender.

(2)An application under section 29(9) of the Act of 2006 for variation of the date or method of payment of the capital sum shall be made by minute in the process of the action to which the application relates.

(3)Words and expressions used in this rule shall have the same meaning as in section 29 of the Act of 2006.]

Textual Amendments

Warrants and forms for intimationS

33.7.(1)[F33Subject to paragraphs (5) and (7), in the initial writ] in a family action, the pursuer shall include a crave for a warrant for intimation—

(a)in an action where the address of the defender is not known to the pursuer and cannot reasonably be ascertained, to—

(i)[F34every person who is a child of the family (as defined in section 12(4)(a) of the Act of 1995)] F35... who has reached the age of 16 years, and

(ii)one of the next-of-kin of the defender who has reached that age,

unless the address of such a person is not known to the pursuer and cannot reasonably be ascertained, and a notice of intimation in Form F1 shall be attached to the copy of the initial writ intimated to any such person;

(b)[F36in an action of divorce] where the pursuer alleges that the defender has committed adultery with another person, to that person, unless—

(i)that person is not named in the initial writ and, if the adultery is relied on for the purposes of section 1(2)(a) of the Act of 1976 (irretrievable breakdown of marriage by reason of adultery), the initial writ contains an averment that his or her identity is not known to the pursuer and cannot reasonably be ascertained, or

(ii)the pursuer alleges that the defender has been guilty of rape upon or incest with, that named person,

and a notice of intimation in Form F2 shall be attached to the copy of the initial writ intimated to any such person;

(c)in an action where the defender is a person who is suffering from a mental disorder, to—

(i)those persons mentioned in sub-paragraph (a)(i) an (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained, F37...

(ii)the curator bonis to the defender, if one has been appointed,

[F38(iii)any person holding the office of guardian or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000,]

and a notice of intimation in Form F3 shall be attached to the copy of the initial writ intimated to any such person;

(d)in an action relating to a marriage which was entered into under a law which permits polygamy where—

(i)one of the decrees specified in section 2(2) of the M11Matrimonial Proceedings (Polygamous Marriages) Act 1972 is sought, and

(ii)either party to the marriage in question has any spouse additional to the other party,

to any such additional spouse, and a notice of intimation in Form F4 shall be attached to the initial writ intimated to any such person;

(e)in an action of divorce [F39, separation or declarator of nullity of marriage] where the sheriff may make [a section 11 order] in respect of a child—

(i)who is in the care of a local authority, to that authority and a notice of intimation in Form F5 shall be attached to the initial writ intimated to that authority;

(ii)who, being a child of one party to the marriage, has been accepted as a child of the family by the other party to the marriage and who is liable to be maintained by a third party, to that third party, and a notice of intimation in Form F5 shall be attached to the initial writ intimated to that third party; or

(iii)in respect of whom a third party [F40in fact exercises care or control], to that third party, and a notice of intimation in Form F6 shall be attached to the initial writ intimated to that third party;

(f)in an action where the pursuer craves [F41a section 11 order], to any parent or guardian of the child who is not a party to the action, and a notice of intimation in Form F7 shall be attached to the initial writ intimated to any such parent or guardian;

F42(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F43(h)in an action which includes a crave for a section 11 order, to the child to whom such an order would relate if not a party to the action, and a notice of intimation in Form F9 shall be intimated to that child [F44but a copy of the initial writ must not be sent to the child];]

(i)in an action where the pursuer makes an application for an order under section 8(1)(aa) of the M12Act of 1985(transfer of property) and—

(i)the consent of a third party to such a transfer is necessary by virtue of an obligation, enactment or rule of law, or

(ii)the property is subject to a security,

to the third party or creditor, as the case may be, and a notice of intimation in Form F10 shall be attached to the initial writ intimated to any such person;

(j)in an action where the pursuer makes an application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions), to—

(i)any third party in whose favour the transfer of, or transaction involving, the property is to be or was made, and

(ii)any other person having an interest in the transfer of, or transaction involving, the property,

and a notice of intimation in Form F11 shall be attached to the initial writ intimated to any such person; F45. . .

(k)in an action where the pursuer makes an application for an order under the M13Act of 1981—

(i)where he is a non-entitled partner and the entitled partner has a spouse, to that spouse, or

(ii)where the application is under section 2(1)(e), 2(4)(a), 3(1), 3(2), 4, 7, 13 or 18 of that Act, and the entitled spouse or entitled partner is a tenant or occupies the matrimonial home by permission of a third party, to the landlord or the third party, as the case may be,

and a notice of intimation in Form F12 shall be attached to the initial writ intimated to any such person [F46;]

[F47(l)in an action where the pursuer makes an application for an order under section 8(1)(ba) of the M14Act of 1985 (orders under section 12A of the Act of 1985 for pension lump sum), to the [F48person responsible for the pension arrangement], and a notice of intimation in Form F12A shall be attached to the initial writ intimated to any such person.] [F49; F50...

(m)in an action where a pursuer makes an application for an order under section 8(1)(baa) of the Act of 1985 (pension sharing orders), to the person responsible for the pension arrangement and a notice of intimation in Form F12B shall be attached to the initial writ intimated to any such person]

[F51(n)in an action where a pursuer makes an application for an order under section 8(1)(bab) of the Act of 1985 (pension compensation sharing order), to the Board of the Pension Protection Fund, and a notice of intimation in Form F12C shall be attached to the initial writ intimated to that Board; and

(o)in an action where a pursuer makes an application for an order under section 8(1)(bb) of the Act of 1985 (an order under section 12B(2) of the Act of 1985 for pension compensation), to the Board of the Pension Protection Fund and a notice of intimation in Form F12D shall be attached to the initial writ intimated to that Board.]

[F52(p)in an action where a pursuer makes an application for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy) to any person having an interest in the deceased’s net estate, and a notice of intimation in Form F12E shall be attached to the initial writ intimated to any such person.]

[F53(2)Expressions used in—

(a)paragraph (1)(k) which are also used in the Act of 1981; and

(b)paragraph (1)(p) which are also used in section 29 of the Act of 2006,

shall have the same meanings as in that Act or section, as the case may be.]

(3)A notice of intimation under paragraph (1) shall be on a period of notice of 21 days unless the sheriff otherwise orders; but the sheriff shall not order a period of notice of less than 2 days.

F54(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Where the address of a person mentioned in paragraph (1)(b), (d), (e), (f), (h), (i), (j) [F55, (k) [F56, (l) [F57, (m) or (p)]]] is not known and cannot reasonably be ascertained, the pursuer shall include a crave in the initial writ to dispense with intimation; and the sheriff may grant that crave or make such other order as he thinks fit.

(6)Where the identity or address of a person to whom intimation of a family action is required becomes known during the course of the action, the party who would have been required to insert a warrant for intimation to that person shall lodge a motion for a warrant for intimation to that person or to dispense with such intimation.

[F58(7)Where a pursuer considers that to order intimation to a child under paragraph (1)(h) is inappropriate, he shall–

(a)include a crave in the initial writ to dispense with intimation to that child, and

(b)include in the initial writ averments setting out the reasons why such intimation is inappropriate;

and the sheriff may dispense with such intimation or make such other order as he thinks fit.]

Extent Information

E1Words in Sch. 1 rule 33.7(1)(e) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(a)(ii)

Textual Amendments

F33Words in Sch. 1 rule 33.7(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(a)(i)

F40Words in Sch. 1 rule 33.7(1)(e)(iii) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(a)(iii)

F41Words in Sch. 1 rule 33.7(1)(f) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(a)(iv)

F43Sch. 1 rule 33.7(1)(h) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(a)(vi)

F45Word in rule 33.7(1)(j) omitted (1.11.1996) by S.I. 1996/2445, para. 3(45)(a)(ii)

F47Sch. 1 rule 33.7(1)(l) inserted (1.11.1996) by S.I. 1996/2445, para. 3(45)(a)(iv)

F55Words in Sch. 1 rule 33.7(5) substituted (1.11.1996) by S.I. 1996/2445, para. 3(45)(b)

F58Sch. 1 rule 33.7(7) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 6(c)

Marginal Citations

Intimation where [F59alleged] associationS

33.8.(1)In a family action where the pursuer [F60founds upon an] association between the defender and another named person, the pursuer shall, immediately after the expiry of the period of notice, lodge a motion for an order for intimation to that person or to dispense with such intimation

(2)In determining a motion under paragraph (1), the sheriff may—

(a)make such order for intimation as he thinks fit; or

(b)dispense with intimation; and

(c)where he dispenses with intimation, order that the name of that person be deleted from the condescendence of the initial writ.

(3)Where intimation is ordered under paragraph (2), a copy of the initial writ and an intimation in Form F13 shall be intimated to the named person.

(4)In paragraph (1), “F61... association” means sodomy, incest or any homosexual relationship.

Textual Amendments

[F62Productions in action of divorce or where a section 11 order or order for financial provision may be made]S

33.9.Unless the sheriff otherwise directs—

(a)in an action of divorce [F63or declarator of nullity of marriage], a warrant for citation shall not be granted without there being produced with the initial writ an extract of the relevant entry in the register of marriages or an equivalent document; and

(b)[F64in a family action which includes a crave for a section 11 order], a warrant for citation shall not be granted without there being produced with the initial writ an extract of the relevant entry in the register of births or an equivalent document.

[F65(c)in an action which includes a crave for an order for financial provision, the pursuer must lodge a completed Form F13A signed by the pursuer with the initial writ or minute of amendment as the case may be.]

Textual Amendments

F64Words in rule 33.9(b) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 7(b)

Productions in action of divorce on ground of issue of interim gender recognition certificateS

[F6633.9A.(1)This rule applies where, in an action of divorce, the ground on which decree of divorce may be granted is that an interim gender recognition certificate has, after the date of the marriage, been issued to either party to the marriage.

(2)Unless the sheriff otherwise directs, a warrant for citation shall not be granted without there being produced with the initial writ–

(a)where the pursuer is the subject of the interim gender recognition certificate, the interim gender recognition certificate or, failing that, a certified copy of the interim gender recognition certificate; or

(b)where the pursuer is the spouse of the person who is the subject of the interim gender recognition certificate, a certified copy of the interim gender recognition certificate.

(3)For the purposes of this rule, a certified copy of an interim gender recognition certificate shall be a copy of that certificate sealed with the seal of the Gender Recognition Panels and certified to be a true copy by an officer authorised by the President of Gender Recognition Panels.

Textual Amendments

Application for corrected gender recognition certificateS

33.9B.An application for a corrected gender recognition certificate under section 6 of the Gender Recognition Act 2004 by–

(a)the person to whom a full gender recognition certificate has been issued; or

(b)the Secretary of State,

shall be made by minute in the process of the action pursuant to which the full gender recognition certificate was issued.]

Textual Amendments

Warrant of citationS

33.10.The warrant of citation in a family action shall be in Form F14.

Form of citation and certificateS

33.11.(1)Subject to rule 5.6 (service where address of person is not known), citation of a defender shall be in Form F15, which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form F26.

(2)The certificate of citation shall be in Form F16 which shall be attached to the initial writ.

Intimation to local authorityS

[F6733.12.(1)In any family action where the pursuer craves a residence order in respect of a child, the sheriff may, if the sheriff thinks fit, order intimation to the local authority in which area the pursuer resides; and such intimation shall be in Form F8.

(2)Where an order for intimation is made under paragraph (1), intimation to that local authority shall be given within 7 days after the date on which an order for intimation has been made.]

Textual Amendments

Service in cases of mental disorder of defenderS

33.13.(1)In a family action where the defender suffers or appears to suffer from mental disorder and is resident in a hospital or other similar institution, citation shall be executed by registered post or the first class recorded delivery service addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the initial writ—

(a)a citation in Form F15;

(b)any notice required by rule 33.14(1);

(c)a request in Form F17;

(d)a form of certificate in Form F18 requesting the medical officer to—

(i)deliver and explain the initial writ, citation and any notice or form of notice of consent required under rule 33.14(1) personally to the defender; or

(ii)certify that such delivery or explanation would be dangerous to the health or mental condition of the defender; and

(e)a stamped envelope addressed for return of that certificate to the pursuer or his solicitor, if he has one.

(2)The medical officer referred to in paragraph (1) shall send the certificate in Form F18 duly completed to the pursuer or his solicitor, as the case may be.

(3)The certificate mentioned in paragraph (2) shall be attached to the certificate of citation.

(4)Where such a certificate bears that the initial writ has not been delivered to the defender, the sheriff may, at any time before decree—

(a)order such further medical inquiry, and

(b)make such order for further service or intimation,

as he thinks fit.

Notices in certain actions of divorce or separationS

33.14.(1)In the following actions of divorce or separation there shall be attached to the copy of the initial writ served on the defender—

(a)in an action relying on section 1(2)(d) of the M15Act of 1976 (no cohabitation for [F68one year] with consent of defender to decree)—

(i)which is an action of divorce, a notice in form F19 and a notice of consent in form F20;

(ii)which is an action of separation, a notice in Form F21 and a form of notice of consent in form F22;

(b)in an action relying on section 1(2)(e) of the Act of 1976 (no cohabitation for [F69two] years)—

(i)which is an action of divorce, a notice in Form F23;

(ii)which is an action of separation, a notice in Form F24;

[F70(c)in an action relying on section 1(1)(b) of the Act of 1976 (grounds for divorce: interim gender recognition certificate), a notice in Form F24A.]

(2)The certificate of [F71citation] of an initial writ in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been attached to the initial writ.

Textual Amendments

F71Word in Sch. 1 rule 33.14(2) substituted (1.11.1996) by S.I. 1996/2445, para. 3(46)

Marginal Citations

Orders for intimationS

F72[33.15.(1) In any family action, the sheriff may, at any time–

(a)subject to paragraph (2), order intimation to be made on such person as he thinks fit;

(b)postpone intimation, where he considers that such postponement is appropriate and, in that case, the sheriff shall make such order in respect of postponement of intimation as he thinks fit; or

(c)dispense with intimation, where he considers that such dispensation is appropriate.

(2)Where the sheriff is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for divorce, separation or annulment affecting children), he shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation in Form F9 to the child to whom the section 11 order would relate unless–

(a)intimation has been given to the child under rule 33.7(1)(h); or

(b)the sheriff considers that the child is not of sufficient age or maturity to express his views.

(3)Where a party makes a crave or averment in a family action which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, that party shall include a crave in his writ for a warrant for intimation or to dispense with such intimation; and rule 33.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule.]

Textual Amendments

F72Sch. 1 rule 33.15 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 9

Appointment of curators ad litem to defendersS

33.16.(1)[F73This rule applies to a family action] where it appears to the court that the defender [F74has] a mental disorder.

(2)In an action to which this rule applies, the sheriff shall [F75, after the expiry of the period for lodging a notice of intention to defend]—

(a)appoint a curator ad litem to the defender;

[F76(b)make an order requiring the curator ad litem to lodge in process a report, based on medical evidence, stating whether or not, in the opinion of a suitably qualified medical practitioner, the defender is incapable of instructing a solicitor to represent the defender’s interests.]

(3)Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him—

(a)a copy of the initial writ and any defences (including any adjustments and amendments) lodged; and

(b)a copy of [F77any notice] in Form G5 sent to him by the [F78sheriff] clerk.

[F79(4)On lodging a report under paragraph (2)(b), the curator ad litem must intimate that this has been done to—

(a)the pursuer; and

(b)the solicitor for the defender, if known.]

[F80(5)Within 14 days after the report required under paragraph (2)(b) has been lodged, the curator ad litem must lodge in process one of the writs mentioned in paragraph (6).]

(6)The writs referred to in paragraph (5) are—

(a)a notice of intention to defend;

(b)defences to the action;

(c)a minute adopting defences already lodged; and

(d)a minute stating that the curator ad litem does not intend to lodge defences.

(7)Notwithstanding that he has lodged a minute stating that he does not intend to lodge defences, a curator ad litem may appear at any stage of the action to protect the interests of the defender.

[F81(8)At such intervals as the curator ad litem considers reasonable having regard to the nature of the defender’s mental disorder, the curator ad litem must review whether there appears to have been any change in the defender’s capacity to instruct a solicitor, in order to ascertain whether it is appropriate for the appointment to continue.

(8A)If it appears to the curator ad litem that the defender may no longer be incapable, the curator ad litem must by motion seek the sheriff’s permission to obtain an opinion on the matter from a suitably qualified medical practitioner.

(8B)If the motion under paragraph (8A) is granted, the curator ad litem must lodge in process a copy of the opinion as soon as possible.

(8C)Where the opinion concludes that the defender is not incapable of instructing a solicitor, the curator ad litem must seek discharge from appointment by minute.]

(9)The pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until—

(a)he lodges a minute stating that he does not intend to lodge defences;

(b)he decides to instruct the lodging of defences or a minute adopting defences already lodged; or

(c)being satisfied after investigation that the defender [F82is not incapable of instructing a solicitor], he is discharged.

Textual Amendments

F77Words in Sch. 1 rule 33.16(3)(b) substituted (1.11.1996) by S.I. 1996/2445, para. 3(47)(a)

F78Word in Sch. 1 rule 33.16(3)(b) substituted (1.11.1996) by S.I. 1996/2445, para. 3(47)(b)

Applications for sistS

33.17.An application for a sist, or the recall of a sist, under Schedule 3 to the M16Domicile and Matrimonial Proceedings Act 1973 shall be made by written motion.

Marginal Citations

Notices of consent to divorce or separationS

33.18.(1)Where, in an action of divorce or separation in which the facts in section 1(2)(d) of the Act of 1976 (no cohabitation for [F83one year] with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree of divorce or separation he shall do so by giving notice in writing in Form F20 (divorce) or Form F22 (separation), as the case may be, to the sheriff clerk.

(2)The evidence of one witness shall be sufficient for the purpose of establishing that the signature on a notice of consent under paragraph (1) is that of the defender.

(3)In an action of divorce or separation where the initial writ includes, for the purposes of section 1(2)(d) of the Act of 1976, an averment that the defender consents to the grant of decree, the defender may give notice by letter sent to the sheriff clerk stating that he has not so consented or that he withdraws any consent which he has already given.

(4)On receipt of a letter under paragraph (3), the sheriff clerk shall intimate the terms of the letter to the pursuer.

(5)On receipt of any intimation under paragraph (4), the pursuer may, within 14 days after the date of the intimation, if none of the other facts mentioned in section 1(2) of the Act of 1976 is averred in the initial writ, lodge a motion for the action to be sisted.

(6)If no such motion is lodged, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

(7)If a motion under paragraph (5) is granted and the sist is not recalled or renewed within a period of 6 months from the date of the interlocutor granting the sist, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

Textual Amendments

Procedure in respect of childrenS

F84[33.19.–

(1)In a family action, in relation to any matter affecting a child, where that child has–

(a)returned to the sheriff clerk Form F9, or

(b)otherwise indicated to the court a wish to express views on a matter affecting him,

the sheriff shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2)Where a child has indicated his wish to express his views, the sheriff shall order such steps to be taken as he considers appropriate to ascertain the views of that child.

(3)The sheriff shall not grant an order in a family action, in relation to any matter affecting a child who has indicated his wish to express his views, unless due weight has been given by the sheriff to the views expressed by that child, having due regard to his age and maturity.]

Textual Amendments

F84Sch. 1 rule 33.19 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 10

Recording of views of the childS

F85[33.20.(1) This rule applies where a child expresses a view on a matter affecting him whether expressed personally to the sheriff or to a person appointed by the sheriff for that purpose or provided by the child in writing.

(2)The sheriff, or the person appointed by the sheriff, shall record the views of the child in writing; and the sheriff may direct that such views, and any written views, given by a child shall–

(a)be sealed in an envelope marked “Views of the child–confidential”;

(b)be kept in the court process without being recorded in the inventory of process;

(c)be available to a sheriff only;

(d)not be opened by any person other than a sheriff; and

(e)not form a borrowable part of the process.]

Textual Amendments

F85Sch. 1 rule 33.20 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 10

Child welfare reportersS

[F8633.21.(1)At any stage of a family action the sheriff may, in relation to any matter affecting a child, appoint a person (referred to in this rule as a “child welfare reporter”)—

(a)to seek the views of the child and to report any views expressed by the child to the court; or

(b)to undertake enquiries and to report to the court.

(2)A child welfare reporter may only be appointed under paragraph (1)(b) where the sheriff is satisfied that the appointment—

(a)is in the best interests of the child; and

(b)will promote the effective and expeditious determination of an issue in relation to the child.

(3)An interlocutor appointing a child welfare reporter must—

(a)specify a date by which the report is to be submitted to the court;

(b)include a direction as to the fees and outlays of the child welfare reporter;

(c)where the appointment is under paragraph (1)(a), specify the issues in respect of which the child’s views are to be sought; and

(d)where the appointment is under paragraph (1)(b), specify the enquiries to be undertaken, and the issues requiring to be addressed in the report.

(4)An interlocutor complies with subparagraph (c) or (d) of paragraph (3) if the issues or, as the case may be the enquiries, referred to in that subparagraph are specified in an annex to the interlocutor in Form F44.

(5)Where the sheriff has appointed a child welfare reporter with a view to the report being considered at an assigned hearing, the date specified in accordance with paragraph (3)(a) must be a date no less than three clear days before that hearing, excluding any day on which the sheriff clerk’s office is not open for civil court business, unless cause exists for specifying a later date.

(6)On appointing a child welfare reporter the sheriff may also—

(a)make such further order as may be required to facilitate the discharge of the child welfare reporter’s functions;

(b)direct that a party to the proceedings is to be responsible for providing the child welfare reporter with copies of such documents lodged in the process as may be specified; and

(c)give the child welfare reporter directions.

(7)The direction referred to in paragraph (3)(b) must assign liability for payment of the child welfare reporter’s fees and outlays in the first instance, and require that liability to be borne—

(a)in equal shares by—

(i)the pursuer,

(ii)any defender who has lodged a notice of intention to defend, and

(iii)any minuter who has been granted leave to enter the process; or

(b)by one or more parties to the proceedings on such other basis as may be justified on cause shown.

(8)On the granting of an interlocutor appointing a child welfare reporter the sheriff clerk must—

(a)give the child welfare reporter—

(i)a certified copy of the interlocutor, and

(ii)sufficient information to enable the child welfare reporter to contact the solicitor for each party to the proceedings, or any party not represented by a solicitor; and

(b)intimate the name and address of the child welfare reporter to any local authority to which intimation of the proceedings has been made.

(9)A child welfare reporter appointed under this rule must—

(a)where the appointment is under paragraph (1)(a)—

(i)seek the child’s views on the specified issues, and

(ii)prepare a report for the court reporting any such views;

(b)where the appointment is under paragraph (1)(b)—

(i)undertake the specified enquiries, and

(ii)prepare a report for the court having regard to the specified issues;

(c)send the report to the sheriff clerk by the date specified; and

(d)unless otherwise directed, send a copy of the report to each party to the proceedings by that date.

(10)A child welfare reporter may—

(a)apply to the sheriff clerk to be given further directions by the sheriff;

(b)bring to the attention of the sheriff clerk any impediment to the performance of any function arising under this rule.

(11)Where a child welfare reporter acts as referred to in paragraph (10), the sheriff may, having heard parties, make any order or direction that could competently have been made under paragraph (6).

Textual Amendments

Appointment of local authority to report on a childS

33.21A.(1)This rule applies where the sheriff appoints a local authority to investigate and report to the court on the circumstances of a child and on the proposed arrangements for the care and upbringing of the child.

(2)The following provisions of rule 33.21 apply as if the reference to the child welfare reporter was a reference to the local authority appointed by the sheriff—

(a)paragraph (3)(a) and (b);

(b)paragraph (6)(a) and (b);

(c)paragraph (7); and

(d)paragraph (8).

(3)On completion of the report referred to in paragraph (1), the local authority must—

(a)send the report to the sheriff clerk; and

(b)unless otherwise directed by the sheriff, send a copy of the report to each party to the proceedings.]

Textual Amendments

Referral to family mediationS

F87[33.22.In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.]

Textual Amendments

F87Sch. 1 rules 33.22, 33.22A substituted (1.11.1996) for Sch. 1 rule 33.22 by S.I. 1996/2167, para. 2, Sch. para. 12

Child Welfare HearingS

F8833.22A.(1) Where–

(a)on the lodging of a notice of intention to defend in a family action in which the initial writ seeks or includes a crave for a section 11 order, a defender wishes to oppose any such crave or order, or seeks the same order as that craved by the pursuer,

(b)on the lodging of a notice of intention to defend in a family action, the defender seeks a section 11 order which is not craved by the pursuer, or

(c)in any other circumstances in a family action, the sheriff considers that a Child Welfare Hearing should be fixed and makes an order (whether at his own instance or on the motion of a party) that such a hearing shall be fixed,

the sheriff clerk shall fix a date and time for a Child Welfare Hearing on the first suitable court date occurring not sooner than 21 days after the lodging of such notice of intention to defend, unless the sheriff directs the hearing to be held on an earlier date.

(2)On fixing the date for the Child Welfare Hearing, the sheriff clerk shall intimate the date of the Child Welfare Hearing to the parties in Form F41.

(3)The fixing of the date of the Child Welfare Hearing shall not affect the right of a party to make any other application to the court whether by motion or otherwise.

(4)At the Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

(a)order such steps to be taken, or

(b)make such order, if any, or

(c)order further procedure,

as he thinks fit.

(5)All parties (including a child who has indicated his wish to attend) shall, except on cause shown, attend the Child Welfare Hearing personally.

(6)It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the Child Welfare Hearing.

Textual Amendments

F88Sch. 1 rules 33.22, 33.22A substituted (1.11.1996) for Sch. 1 rule 33.22 by S.I. 1996/2167, para. 2, Sch. para. 12

Applications for orders to disclose whereabouts of childrenS

33.23.(1)An application for an order under section 33(1) of the M17Family Law Act 1986 (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

(2)Where the sheriff makes an order under section 33(1) of the Family Law Act 1986, he may ordain the person against whom the order has been made to appear before him or to lodge an affidavit.

Marginal Citations

Applications in relation to removal of childrenS

33.24.(1)An application for leave under M18section 51(1) of the Act of 1975 (authority to remove a child from the care and possession of the applicant for [F89a residence order]) or for an order under section 35(3) of the Family Law Act 1986 (application for interdict or interim interdict prohibiting removal of child from jurisdiction) shall be made—

(a)by a party to the action, by motion; or

(b)by a person who is not a party to the action, by minute.

(2)An application under section 35(3) of the Family Law Act 1986 need not be served or intimated.

(3)An application under section 23(2) of the M19Child Abduction and Custody Act 1985(declarator that removal of child from United Kingdom was unlawful) shall be made—

(a)in an action depending before the sheriff—

(1)by a party, in the initial writ, defences or minute, as the case may be, or by motion; or

(ii)by any other person, by minute; or

(b)after final decree, by minute in the process of the action to which the application relates.

Textual Amendments

F89Words in Sch. 1 rule 33.24(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 13

Marginal Citations

Intimation to local authority before supervised [F90contact order]S

33.25.Where the sheriff, [F91at his own instance] or on the motion of a party, is considering making [F92a contact order or an interim contact order] subject to supervision by the social work department of a local authority, he shall ordain the party moving [F93for such an order] to intimate to the chief executive of that local authority (where not already a party to the action and represented at the hearing at which the issue arises)—

(a)the terms of any relevant motion;

(b)the intention of the sheriff to order that [F94the contact order] be supervised by the social work department of that local authority; and

(c)that the local authority shall, within such period as the sheriff has determined—

(i)notify the sheriff clerk whether it intends to make representations to the sheriff; and

(ii)where it intends to make representations in writing, F95... do so within that period.

Textual Amendments

F90Words in Sch. 1 rule 33.25 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 14(a)

F91Words in Sch. 1 rule 33.25 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 14(b)

F92Words in Sch. 1 rule 33.25 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 14(c)

F93Words in Sch. 1 rule 33.25 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 14(d)

F94Words in Sch. 1 rule 33.25(b) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 14(e)

Joint minutesS

33.26.Where any parties have reached agreement in relation to—

(a)[F96a section 11 order],

(b)aliment for a child, F97...

(c)an order for financial provision, [F98or

(d)an order under section 28 or 29 of the Act of 2006.]

a joint minute may be entered into expressing that agreement; [F99and, subject to rule 33.19(3) (no order before views of child expressed),the sheriff] may grant decree in respect of those parts of the joint minute in relation to which he could otherwise make an order, whether or not such a decree would include a matter for which there was no crave.

Textual Amendments

F96Words in Sch. 1 rule 33.26(a) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 15(a)

F99Words in Sch. 1 rule 33.26 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 15(b)

AffidavitsS

33.27.The sheriff may accept evidence by affidavit at any hearing for an order or interim order.

Applications for postponement of decree under section 3A of the Act of 1976S

[F10033.27A.An application under section 3A(1) (application for postponement of decree where religious impediment to marry exists) or section 3A(4) (application for recall of postponement) of the Act of 1976 shall be made by minute in the process of the action to which the application relates.]

Textual Amendments

PART IISUNDEFENDED FAMILY ACTIONS
Evidence in certain undefended family actionsS

33.28.(1)This rule—

(a)subject to sub-paragraph (b), applies to all family actions in which no notice of intention to defend has been lodged, other than a family action—

(i)for [F101a section 11 order or for] aliment;

(ii)of affiliation and aliment;

(iii)for financial provision after an overseas divorce or annulment within the meaning of Part IV of the M20Matrimonial and Family Proceedings Act 1984; or

(iv)for an order under the M21Act of 1981;

[F102(v)for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973;]

[F103(vi)for an order under section 28 or 29 of the Act of 2006;]

[F104(vii)for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.]

(b)applies to a family action in which a curator ad litem has been appointed under rule 33.16 where the curator ad litem to the defender has lodged a minute intimating that he does not intend to lodge defences;

(c)applies to any family action which proceeds at any stage as undefended where the sheriff so directs;

(d)applies to the merits of a family action which is undefended on the merits where the sheriff so directs, notwithstanding that the action is defended on an ancillary matter.

(2)Unless the sheriff otherwise directs, evidence shall be given by affidavit.

(3)Unless the sheriff otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being emitted by a person other than a parent or party to the action.

(4)Evidence in the form of a written statement bearing to be the professional opinion of a duly qualified medical practitioner, which has been signed by him and lodged in process, shall be admissible in place of parole evidence by him.

Textual Amendments

F101Words in Sch. 1 rule 33.28(1)(a)(i) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 16

Marginal Citations

M201984 c.42; Part IV was amended by the Act of 1985 (c.37), Schedule 1, paragraphs 12 and 13.

Procedure for decree in actions under rule 33.28S

33.29.(1)In an action to which rule 33.28 (evidence in certain undefended family actions) applies, the pursuer shall at any time after the expiry of the period for lodging a notice of intention to defend—

(a)lodge in process the affidavit evidence; and

(b)endorse a minute in Form F27 on the initial writ.

(2)The sheriff may, at any time after the pursuer has complied with paragraph (1), without requiring the appearance of parties—

(a)grant decree in terms of the motion for decree; or

(b)remit the cause for such further procedure, if any, including proof by parole evidence, as the sheriff thinks fit.

Extracts of undefended decreeS

33.30.In an action to which rule 33.28 (evidence in certain undefended family actions) applies, the sheriff clerk shall, after the expiry of 14 days after the grant of decree under rule 33.29 (procedure for decree in actions under rule 33.28), issue to the [F105pursuer] and the defender an extract decree.

Textual Amendments

F105Word in Sch. 1 rule 33.30 substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(26)}

Procedure in undefended family actions for [F106section 11 order]S

33.31.(1)Where no notice of intention to defend has been lodged in a family action for [F107a section 11 order], any proceedings in the cause shall be dealt with by the sheriff in chambers.

(2)In an action to which paragraph (1) applies, decree may be pronounced after such inquiry as the sheriff thinks fit.

Textual Amendments

F106Words in Sch. 1 rule 33.31 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 17(a)

F107Words in Sch. 1 rule 33.31(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 17(b)

No recording of evidenceS

33.32.It shall not be necessary to record the evidence in any proof in a family action which is not defended.

Disapplication of Chapter 15S

33.33.[F108Other than rule 15.1(1),]Chapter 15 (motions) shall not apply to a family action in which no notice of intention to defend has been lodged [F109, or to a family action in so far as it proceeds as undefended].

Textual Amendments

F108Words in Sch. 1 rule 33.33 inserted (1.11.1996) by S.I. 1996/2445, para. 3(48)(a)

F109Words in Sch. 1 rule 33.33 inserted (1.11.1996) by S.I. 1996/2445, para. 3(48)(b)

Late appearance and application for recall by defendersS

[F11033.33A.(1)In a cause mentioned in [F111rule 33.1(a) to (h) or [F112(n) to (q)]], the sheriff may, at any stage of the action before the granting of final decree, make an order with such conditions, if any, as he thinks fit–

(a)directing that a defender who has not lodged a notice of intention to defend be treated as if he had lodged such a notice and the period of notice had expired on the date on which the order was made; or

(b)allowing a defender who has not lodged a notice of intention to defend to appear and be heard at a diet of proof although he has not lodged defences, but he shall not, in that event, be allowed to lead evidence without the pursuer's consent.

(2)Where the sheriff makes an order under paragraph (1), the pursuer may recall a witness already examined or lead other evidence whether or not he closed his proof before that order was made.

(3)Where no order under paragraph (1) has been sought by a defender who has not lodged a notice of intention to defend and decree is granted against him, the sheriff may, on an application made within 14 days of the date of the decree, and with such conditions, if any, as he thinks fit, make an order recalling the decree.

(4)Where the sheriff makes an order under paragraph (3), the cause shall thereafter proceed as if the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree was recalled.

(5)An application under paragraph (1) or (3) shall be made by note setting out the proposed defence and explaining the defender's failure to appear.

(6)An application under paragraph (1) or (3) shall not affect any right of appeal the defender may otherwise have.

(7)A note lodged in an application under paragraph (1) or (3) shall be served on the pursuer and any other party.]

Textual Amendments

PART IIISDEFENDED FAMILY ACTIONS
[F113Notice of intention to defend and defences etc.]S

33.34.(1)This rule applies where the defender in a family action seeks—

(a)to oppose any crave in the initial writ;

(b)to make a claim for—

(i)aliment;

(ii)an order for financial provision within the meaning of section 8(3) of the Act of 1985; F114...

(iii)[F115a section 11 order]; F116...

[F117(iv)an order for financial provision under section 28 or 29 of the Family Law (Scotland) Act 2006; or]

(c)an order—

(i)under section 16(1)(b) or (3) of the M22Act of 1985 (setting aside or varying agreement as to financial provision);

(ii)under section 18 of the Act of 1985 (which relates to avoidance transactions); or

(iii)under the Act of 1981; or

(d)to challenge the jurisdiction of the court.

(2)In an action to which this rule applies, the defender shall—

(a)lodge a notice of intention to defend in Form F26 before the expiry of the period of notice; and

(b)make any claim or seek any order referred to in paragraph (1), as the case may be, in those defences by setting out in his defences—

(i)craves;

(ii)averments in the answers to the condescendence in support of those craves; and

(iii)appropriate pleas-in-law.

[F118(3)Where a defender intends to make an application for a section 11 order which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, the defender shall include a crave in his notice of intention to defend for a warrant for intimation or to dispense with such intimation; and rule 33.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule.]

[F119(4)Where a defender opposes a crave for an order for financial provision or makes a claim in accordance with paragraph (1)(b)(ii), the defender must lodge a completed Form F13A signed by the defender with the defences, minute of amendment or answers as the case may be.]

Textual Amendments

F114Word in Sch. 1 rule 33.34(1)(b)(ii) omitted (1.8.2012) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 5(9)(a) (with para. 15)

F115Words in Sch. 1 rule 33.34(1)(b)(iii) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 18(a)

F116Word in Sch. 1 rule 33.34(1)(b)(iii) omitted (1.8.2012) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 5(9)(a) (with para. 15)

F118Sch. 1 rule 33.34(3) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 18(b)

Marginal Citations

Abandonment by pursuerS

33.35.Notwithstanding abandonment by a pursuer, the court may allow a defender to pursue an order or claim sought in his defences; and the proceedings in relation to that order or claim shall continue in dependence as if a separate cause.

Attendance of parties at Options HearingS

33.36.All parties shall, except on cause shown, attend personally the hearing under rule 9.12 (Options Hearing).

Decree by defaultS

33.37.(1)In a family action in which the defender has lodged a notice of intention to defend, where a party fails—

(a)to lodge, or intimate the lodging of, any production or part of process,

(b)to implement an order of the sheriff within a specified period, F120...

(c)to appear [F121or] be represented at any diet, [F122, or

(d)otherwise to comply with any requirement imposed upon that party by these Rules]

that party shall be in default.

(2)Where a party is in default under paragraph (1), the sheriff may—

(a)where the family action is one mentioned in [F123rule 33.1(a) to (h) or (n) to (p)], allow that action to proceed as undefended under Part II of this Chapter; or

(b)where the family action is one mentioned in rule 33.1(1)(i) to (m) [F124or (q)], grant decree as craved; or

(c)grant decree of absolvitor; or

(d)dismiss the family action or any claim made or order sought; [F125or]

[F126(da)make such other order as he thinks fit to secure the expeditious progress of the cause; and]

(e)award expenses.

(3)Where no party appears at a diet in a family action, the sheriff may dismiss that action.

(4)In a family action, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process, or for intimating or implementing any order.

Textual Amendments

F121Word in Sch. 1 rule 33.37(1)(c) substituted (1.11.1996) by S.I. 1996/2445, para. 3(49)

PART IVSAPPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS
Application and interpretation of this PartS

F127. . .This Part applies to an action of divorce [F128, separation or declarator of nullity of marriage].

F129(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F127Sch. 1 rule 33.38: “-(1)” at the beginning of paragraph (1) is omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 19(a)

F128Words in Sch. 1 rule 33.38 substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(28)}

F129Sch. 1 rule 33.38(2) omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 19(b)

Applications in actions to which this Part appliesS

33.39.(1)An application for an order mentioned in paragraph (2) shall be made—

(a)by a crave in the initial writ or defences, as the case may be, in an action to which this Part applies; or

(b)where the application is made by a person other than the pursuer or defender, by minute in that action.

(2)The orders referred to in paragraph (1) are:—

(a)an order for [F130a section 11 order]; and

(b)an order for aliment for a child.

Textual Amendments

F130Words in Sch. 1 rule 33.39(2)(a) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 20

F13133.40.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F131Sch. 1 rule 33.40 omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 21

F13233.41.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F132Sch. 1 rule 33.41 omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 22

F13333.42.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F133Sch. 1 rule 33.42 omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 23

Applications in depending actions by motionS

F134[33.43.An application by a party in an action depending before the court to which this Part applies for, or for variation of, an order for–

(a)interim aliment for a child under the age of 18, or

(b)a residence order or a contact order,

shall be made by motion.]

Textual Amendments

F134Sch. 1 rule 33.43 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 24

Applications after decree relating to [F135a section 11 order]S

33.44.[F136(1)An application after final decree for, or for the variation or recall of, a section 11 order [F137or in relation to the enforcement of such an order] shall be made by minute in the process of the action to which the application relates.]

(2)Where a minute has been lodged under paragraph (1), any party may apply by motion for any interim order which may be made pending the determination of the application.

Textual Amendments

F135Words in Sch. 1 rule 33.44 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 25(a)

F136Sch. 1 rule 33.44(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 25(b)

F137Words Sch. 1 rule 33.44(1) inserted (2.10.2000) by S.S.I. 2000/239, Sch. para. 3(15)

Applications after decree relating to alimentS

33.45.(1)An application after final decree for, or for the variation or recall of, an order for aliment for a child shall be made by minute in the process of the action to which the application relates.

(2)Where a minute has been lodged under paragraph (1), any party may lodge a motion for any interim order which may be made pending the determination of the application.

Applications after decree by persons over 18 years for alimentS

33.46.(1)A person—

(a)to whom an obligation of aliment is owed under section 1 of the M23Act of 1985,

(b)in whose favour an order for aliment while under the age of 18 years was made in an action to which this Part applies, and

(c)who seeks, after attaining that age, an order for aliment against the person in that action against whom the order for aliment in his favour was made,

shall apply by minute in the process of that action.

(2)An application for interim aliment pending the determination of an application under paragraph (1) shall be made by motion.

(3)Where a decree has been pronounced in an application under paragraph (1) or (2), any application for variation or recall of any such decree shall be made by minute in the process of the action to which the application relates.

Marginal Citations

PART VSORDERS RELATING TO FINANCIAL PROVISION
Application and interpretation of this PartS

33.47.(1)This Part applies to an action of divorce.

(2)In this Part, “incidental order” has the meaning assigned in section 14(2) of the Act of 1985.

Applications in actions to which this Part appliesS

33.48.(1)An application for an order mentioned in paragraph (2) shall be made—

(a)by a crave in the initial writ or defences, as the case may be, in an action to which this Part applies; or

(b)where the application is made by a person other than the pursuer or defender, by minute in that action.

(2)The orders referred to in paragraph (1) are:—

(a)an order for financial provision within the meaning of section 8(3) of the Act of 1985;

(b)an order under section 16(1)(b) or (3) of the Act of 1985 (setting aside or varying agreement as to financial provision);

(c)an order under section 18 of the Act of 1985 (which relates to avoidance transactions); and

(d)an order under section 13 of the M24Act of 1981 (transfer or vesting of tenancy).

Marginal Citations

Applications in depending actions relating to incidental ordersS

33.49.(1)In an action depending before the sheriff to which this Part applies—

(a)the pursuer or defender, notwithstanding rules 33.34(2) (application by defender for order for financial provision) and 33.48(1)(a) (application for order for financial provision in initial writ or defences), may apply by motion for an incidental order; and

(b)the sheriff shall not be bound to determine such a motion if he considers that the application should properly by by a crave in the initial writ or defences, as the case may be.

(2)In an action depending before the sheriff to which this Part applies, an application under section 14(4) of the Act of 1985 for the variation or recall of an incidental order shall be made by minute in the process of the action to which the application relates.

Applications relating to interim alimentS

33.50.An application for, or for the variation or recall of, an order for interim aliment for the pursuer or defender shall be made by motion.

Applications relating to orders for financial provisionS

33.51.(1)An application—

(a)after final decree under any of the following provisions of the Act of 1985—

(i)section 8(1) for periodical allowance,

(ii)section 12(1)(b) (payment of capital sum or transfer of property),

(iii)section 12(4) (variation of date or method of payment of capital sum or date of transfer of property), or

(iv)section 13(4) (variation, recall, backdating or conversion of periodical allowance), F138...

[F139(v)section 14(1) (incidental orders), or]

(b)after the grant or refusal of an application under—

(i)section 8(1) or 14(3) for an incidental order, or

(ii)section 14(4) (variation or recall of incidental order),

shall be made by minute in the process of the action to which the application relates.

(2)Where a minute is lodged under paragraph (1), any party may lodge a motion for any interim order which may be made pending the determination of the application.

[F140(3)An application under–

(a)paragraph (5) of section 12A of the Act of 1985 F141 (recall or variation of order in respect of a pension lump sum), F142. . .

(b)paragraph (7) of that section (variation of order in respect of pension lump sum to substitute trustees or managers), F143[F144...

[F145(ba)section 12B(4) of the Act of 1985 (recall or variation of a capital sum order), or]

(c)section 28(10) or 48(9) of the Welfare Reform and Pensions Act 1999 F146,]

shall be made by minute in the process of the action to which the application relates.]

Textual Amendments

F140Sch. 1 rule 33.51(3) inserted (1.11.1996) by S.I. 1996/2445, para. 3(50)

Pension Protection Fund notificationS

[F14733.51A.(1)In this rule–

  • “assessment period” shall be construed in accordance with section 132 of the Pensions Act 2004 F148;

  • “pension arrangement” shall be construed in accordance with the definition in section 27 of the Act of 1985; and

  • “valuation summary” shall be construed in accordance with the definition in Schedule 2 to the Pension Protection Fund (Provision of Information) Regulations 2005 F149.

(2)This rule applies where a party at any stage in the proceedings applies for an order under section 8 or section 16 of the Act of 1985.

(3)Where the party against whom an order referred to in paragraph (2) is sought has received notification in compliance with the Pension Protection Fund (Provision of Information) Regulations 2005 or does so after the order is sought–

(a)that there is an assessment period in relation to his pension arrangement; or

(b)that the Board of the Pension Protection Fund has assumed responsibility for all or part of his pension arrangement,

he shall comply with paragraph (4).

(4)The party shall–

(a)lodge the notification; and

(b)obtain and lodge as soon as reasonably practicable thereafter–

(i)a valuation summary; and

(ii)a forecast of his compensation entitlement.

(5)Subject to paragraph (6), the notification referred to in paragraph (4)(a) requires to be lodged–

(a)where the notification is received before the order is sought, within 7 days of the order being sought;

(b)where the notification is received after the order is sought, within 7 days of receiving the notification.

(6)Where an order is sought against the defender before the defences are lodged, and the notification is received before that step occurs, the notification shall be lodged with the defences.

(7)At the same time as lodging documents under paragraph (4), copies shall be sent to the other party to the proceedings.]

Textual Amendments

Applications after decree relating to agreements and avoidance transactionsS

33.52.An application for an order—

(a)under section 16(1)(a) or (3) of the Act of 1985 (setting aside or varying agreements as to financial provision), or

(b)under section 18 of the Act of 1985 (which relates to avoidance transactions),

made after final decree shall be made by minute in the process of the action to which the application relates.

PART VIS APPLICATIONS RELATING TO AVOIDANCE TRANSACTIONS
Form of applicationsS

33.53.(1)An application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions) by a party to an action shall be made by including in the initial writ, defences or minute, as the case may be, appropriate craves, averments and pleas-in-law.

(2)An application for an order under section 18 of the Act of 1985 after final decree in an action, shall be made by minute in the process of the action to which the application relates.

PART VIIS FINANCIAL PROVISION AFTER OVERSEAS DIVORCE OR ANNULMENT
Interpretation of this PartS

33.54.In this Part—

  • “the Act of 1984” means the M25Matrimonial and Family Proceedings Act 1984;

  • “order for financial provision” has the meaning assigned in section 30(1) of the Act of 1984;

  • “overseas country” has the meaning assigned in section 30(1) of the Act of 1984.

Marginal Citations

Applications for financial provision [F150after overseas divorce or annulment]S

33.55.(1)An application under M26section 28 of the Act of 1984 for an order for financial provision after a divorce or annulment in an overseas country shall be made by initital writ.

(2)An application for an order in an action to which paragraph (1) applies made before final decree under—

(a)section 13 of the M27Act of 1981(transfer of tenancy of matrimonal home),

(b)section 29(4) of the Act of 1984 for interim periodical allowance, or

(c)section 14(4) of the Act of 1985 (variation or recall of incidental order),

shall be made by motion.

(3)An application for an order in an action to which paragraph (1) applies made after final decree under—

(a)section 12(4) of the Act of 1985 (variation of date or method of payment of capital sum or date of transfer of property),

(b)section 13(4) of the Act of 1985 (variation, recall, backdating or conversion [F151of] periodical allowance), or

(c)section 14(4) of the Act of 1985 (variation or recall of incidental order),

shall be made by minute in the process of the action to which the application relates.

[F152(4)An application under–

(a)paragraph (5) of section 12A of the Act of 1985 (recall or variation of order in respect of a pension lump sum), or

(b)paragraph (7) of that section (variation of order in respect of pension lump sum to substitute trustees or managers),

shall be made by minute in the process of the action to which the application relates.]

[F153(5)]Where a minute has been lodged under paragraph (3), any party may apply by motion for an interim order pending the determination of the application.

Textual Amendments

F150Words in Sch. 1 rule 33.55 heading inserted (1.11.1996) by S.I. 1996/2445, para. 3(51)(a)

F151Word in Sch. 1 rule 33.55(3)(b) substituted (1.11.1996) by S.I. 1996/2445, para. 3(51)(b)

F152Sch. 1 rule 33.55(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(51)(d)

F153Sch. 1 rule 33.55(4) renumbered as Sch. 1 rule 33.55(5) (1.11.1996) by S.I. 1996/2445, para. 3(51)(c)

Marginal Citations

M26Section 28 was extended by section 29A (inserted by the Act of 1985, Schedule 1, paragraph 12) to an annulment.

M271981 c.51; section 13(2) was amended by the Act of 1985, Schedule 1, paragraph 11.

PART VIIIS ACTIONS OF ALIMENT
Interpretation of this PartS

33.56.In this Part, “action of aliment” means a claim for aliment under section 2(1) of the Act of 1985.

Undefended actions of alimentS

33.57.(1)Where a motion for decree in absence under Chapter 7 (undefended causes) is lodged in an action of aliment, the pursuer shall, on lodging the motion, lodge all documentary evidence of the means of the parties available to him in support of the amount of aliment sought.

(2)Where the sheriff requires the appearance of parties, the sheriff clerk shall fix a hearing.

Applications relating to alimentS

33.58.(1)An application for, or for variation of, an order for interim aliment in a depending action of aliment shall be made by motion.

(2)An application after final decree for the variation or recall of an order for aliment in an action of aliment shall be made by minute in the process of the action to which the application relates.

(3)A person—

(a)to whom an obligation of aliment is owed under section 1 of the M28Act of 1985,

(b)in whose favour an order for aliment while under the age of 18 years was made in an action of aliment, or

(c)who seeks, after attaining that age, an order for aliment against the person in that action against whom the order for aliment in his favour was made,

shall apply by minute in the process of that action.

(4)An application for interim aliment pending the determination of an application under paragraph (2) or (3) shall be made by motion.

(5)Where a decree has been pronounced in an application under paragraph (2) or (3), any application for variation or recall of any such decree shall be made by minute in the process of the action to which the application relates.

Marginal Citations

Applications relating to agreements on alimentS

33.59.(1)Subject to paragraph (2) [F154and rule 33A.53], an application under section 7(2) of the Act of 1985 (variation or termination of agreement on aliment) shall be made by summary application.

(2)In a family action in which a crave for aliment may be made, an application under section 7(2) of the Act of 1985 shall be made by a crave in the initial writ or in defences, as the case may be.

Textual Amendments

F154Words in Sch. 1 rule 33.59(1) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(29)}

[F155PART IXS APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995.]

Textual Amendments

F155Sch. 1 Ch. 33 Pt. 9 heading substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 26

Application of this PartS

F156[33.60.This Part applies to an application for a section 11 order in a family action other than in an action of divorce [F157, separation or declarator of nullity of marriage].]

Textual Amendments

F156Sch. 1 rule 33.60 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 27

F157Words in Sch. 1 rule 33.60 substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(30)}

Form of applicationsS

33.61.Subject to any other provision in this Chapter, an application for [F158a section 11 order] shall be made—

(a)by an action for [F159a section 11 order];

(b)by a crave in the initial writ or defences, as the case may be, in any other family action to which this Part applies; or

(c)where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Textual Amendments

F158Words in Sch. 1 rule 33.61 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 28(a)

F159Words in Sch. 1 rule 33.61(a) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 28(b)

Defences in action for a section 11 orderS

F160[F16033.62.In an action for a section 11 order, the pursuer shall call as a defender—

(a)the parents or other parent of the child in respect of whom the order is sought;

(b)any guardian of the child;

(c)any person who has treated the child as a child of his family;

(d)any person who in fact exercises care or control in respect of the child; and

F161(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F160Sch. 1 rule 33.62 substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 29

F161Sch. 1 rule 33.62(e) omitted (2.10.2000) by virtue of S.S.I. 2000/239, para. 3(16)

Applications relating to interim orders in depending actionsS

33.63.An application, in an action depending before the sheriff to which this Part applies, for, or for the variation or recall of, F162. . . [F163an interim residence order or an interim contact order] shall be made—

(a)by a party to the action, by motion; or

(b)by a person who is not a party to the action, by minute.

Textual Amendments

F162Words in Sch. 1 rule 33.63 omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(31)}

F163Sch. 1 rule 33.63: the words “an interim residence order or an interim contact order” substituted for the words “interim custody or interim access” (1.11.1996) by virtue of S.I. 1996/2167, para. 2, Sch. para. 30

F16433.64.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F164Sch. 1 rule 33.64 omitted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 31

Applications after decreeS

33.65.[F165(1)An application after final decree for variation or recall of a section 11 order shall be made by minute in the process of the action to which the application relates.]

(2)Where a minute has been lodged under paragraph (1), any party may apply by motion for an interim order pending the determination of the application.

Textual Amendments

F165Sch. 1 rule 33.65(1) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 32

Application for leaveS

[F16633.65A.(1)Where leave of the court is required under section 11(3)(aa) of the Act of 1995 for the making of an application for a contact order under that section, the applicant must lodge along with the initial writ a written application in the form of a letter addressed to the sheriff clerk stating—

(a)the grounds on which leave is sought;

(b)whether or not the applicant has applied for legal aid.

(2)Where the applicant has applied for legal aid he must also lodge along with the initial writ written confirmation from the Scottish Legal Aid Board that it has determined, under regulation 7(2)(b) of the Civil Legal Aid (Scotland) Regulations 2002 M29, that notification of the application should be dispensed with or postponed pending the making by the sheriff of an order for intimation under paragraph (4)(b).

(3)Subject to paragraph (4)(b), an application under paragraph (1) shall not be served or intimated to any party.

(4)The sheriff shall consider an application under paragraph (1) without hearing the applicant and may—

(a)refuse the application and pronounce an interlocutor accordingly; or

(b)if he is minded to grant the application order the applicant—

(i)to intimate the application to such persons as the sheriff considers appropriate; and

(ii)to lodge a certificate of intimation in, as near as may be, Form G8.

(5)If any person who receives intimation of an application under paragraph (4)(b) wishes to be heard he shall notify the sheriff clerk in writing within 14 days of receipt of intimation of the application.

(6)On receipt of any notification under paragraph (5) the sheriff clerk shall fix a hearing and intimate the date of the hearing to the parties.

(7)Where an application under paragraph (1) is granted, a copy of the sheriff's interlocutor must be served on the defender along with the warrant of citation.]

Textual Amendments

F166Sch. 1 rule 33.65A inserted (28.9.2009) by Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (S.S.I. 2009/284), {para. 3(4)}

Marginal Citations

PART XS ACTIONS UNDER THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981
Interpretation of this PartS

33.66.Unless the context otherwise requires, words and expressions used in this Part which are also used in the M30Act of 1981 have the same meaning as in that Act.

Marginal Citations

Form of applicationsS

33.67.(1)Subject to any other provision in this Chapter, an application for an order under the Act of 1981 shall be made—

(a)by an action for such an order;

(b)by a crave in the initial writ or in defences, as the case may be, in any other family action; or

(c)where the application is made by a person other than a party to any action mentioned in paragraph (a) or (b), by minute in that action.

(2)An application under section 7(1) (dispensing with consent of non-entitled spouse to a dealing) or section 11 (application in relation to poinding) shall, unless made in a depending family action, be made by summary application.

DefendersS

33.68.The applicant for an order under the Act of 1981 shall call as a defender—

(a)where he is seeking an order as a spouse, the other spouse;

(b)where he is a third party making an application under section 7(1) (dispensing with consent of non-entitled spouse to a dealing), or 8(1) (payment from non-entitled spouse in respect of loan), of the Act of 1981, both spouses; F167. . .

(c)where the application is made under section 18 of the Act of 1981 M31(occupancy rights of cohabiting couples), or is one to which that section applies, the other partner. [F168; and

(d)where the application is made under section 18A of the Act of 1981 M32(application for domestic interdict), the other partner.]

Textual Amendments

F167Word in Sch. 1 rule 33.68(b) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(32)(a)}

F168Sch. 1 rule 33.68(d) and word inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(32)(b)}

Marginal Citations

M32Section 18A was inserted by section 31 of the Family Law (Scotland) Act 2006 (asp2).

Applications by motionS

33.69.(1)An application under any of the following provisions of the Act of 1981 shall be made by motion in the process of the depending action to which the application relates:—

(a)section 3(4) (interim order for regulation of rights of occupancy, etc.);

(b)section 4(6) (interim order suspending occupancy rights);

(c)section 7(1) (dispensing with consent of non-entitled spouse to a dealing);

(d)F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)the proviso to section 18(1) F170 (extension of period of occupancy rights).

(2)Intimation of a motion under paragraph (1) shall be given—

(a)to the other spouse or partner, as the case may be;

(b)where the motion is under paragraph (1)(a), (b) or (e) and the entitled spouse or partner is a tenant or occupies the matrimonial home by the permission of a third party, to the landlord or third party, as the case may be; and

(c)to any other person to whom intimation of the application was or is to be made by virtue of rule 33.7(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 33.15 (order for intimation by sheriff).

Textual Amendments

F169Sch. 1 rule 33.69(1)(d) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(33)}

Applications by minuteS

33.70.(1)An application for an order under—

(a)section 5 of the Act of 1981 (variation and recall of orders regulating occupancy rights and of exclusion order), or

(b)F171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall be made by minute.

(2)A minute under paragraph (1) shall be intimated—

(a)to the other spouse or partner, as the case may be;

(b)where the entitled spouse or partner is a tenant or occupies the matrimonial home by the permission of a third party, to the landlord or third party, as the case may be; and

(c)to any other person to whom intimation of the application was or is to be made by virtue of rule 33.7(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 33.15 (order for intimation by sheriff).

Textual Amendments

F171Sch. 1 rule 33.70(1)(b) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(34)}

Sist of actions to enforce occupancy rightsS

33.71.Unless the sheriff otherwise directs, the sist of an action by virtue of section 7(4) of the Act of 1981 (where action raised by non-entitled spouse to enforce occupancy rights) shall apply only to such part of the action as relates to the enforcement of occupancy rights by a non-entitled spouse.

33.72.SF172. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F172Sch. 1 rule 33.72 omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(35)}

PART XIS SIMPLIFIED DIVORCE APPLICATIONS
Application and interpretation of this PartS

33.73.(1)This Part applies to an application for divorce by a party to a marriage made in the manner prescribed in rule 33.74 (form of applications) if, but only if—

(a)that party relies on the facts set out in section 1(2)(d) (no cohabitation for [F173one year] with consent of defender to decree), or section 1(2)(e) (no cohabitation for [F174two] years) [F175 or section 1(1)(b) (issue of interim gender recognition certificate) ]F176, of the M33Act of 1976;

(b)in an application under section 1(2)(d) of the Act of 1976, the other party consents to decree of divorce being granted;

(c)no other proceedings are pending in any court which could have the effect of bringing the marriage to an end;

(d)there are no children of the marriage under the age of 16 years;

(e)neither party to the marriage applies for an order for financial provision on divorce; F177. . .

(f)neither party to the marriage suffers from mental disorder [F178; and.

[F179(g)neither party to the marriage applies for postponement of decree under section 3A of the Act of 1976 M34(postponement of decree where impediment to religious marriage exists).]]

(2)If an application ceases to be one to which this Part applies at any time before final decree, it shall be deemed to be abandoned and shall be dismissed.

(3)In this Part “simplified divorce application” means an application mentioned in paragraph (1).

Textual Amendments

F173Words in Sch. 1 rule 33.73(1)(a) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(36)(a)(i)}

F174Word in Sch. 1 rule 33.73(1)(a) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(36)(a)(ii)}

F175Words in Sch. 1 rule 33.73(1)(a) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(36)(a)(iii)}

F176Section 1(1)(b) was inserted by paragraph 6 of Schedule 2 to the Gender Recognition Act 2004 (c. 7).

F177Word in Sch. 1 rule 33.73(1)(e) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(36)(b)}

F178Sch. 1 rule 33.73(1)(g) and word inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(36)(c)}

Marginal Citations

M34Section 3A was inserted by section 15 of the Family Law (Scotland) Act 2006 (asp 2).

Form of applicationsS

33.74.(1)A simplified divorce application in which the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for [F180one year] with consent of defender to decree) are relied on shall be made in Form F31 and shall only be of effect if—

(a)it is signed by the applicant; and

(b)the form of consent in Part 2 of Form [F181F31] is signed by the party to the marriage giving consent.

(2)A simplified divorce application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for [F182two] years) are relied on shall be made in Form F33 and shall only be of effect if it is signed by the applicant.

[F183(3)A simplified divorce application in which the facts set out in section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate) are relied on shall be made in Form F33A and shall only be of effect if signed by the applicant.]

Textual Amendments

F180Words in Sch. 1 rule 33.74(1) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(37)(a)}

F181Word in Sch. 1 rule 33.74(1)(b) substituted (1.11.1996) by S.I. 1996/2445, para. 3(54)

F182Word in Sch. 1 rule 33.74(2) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(37)(b)}

F183Sch. 1 rule 33.74(3) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(37)(c)}

Lodging of applicationsS

33.75.The applicant shall send a simplified divorce application to the sheriff clerk with—

(a)an extract or certified copy of the marriage certificate; F184. . .

(b)the appropriate fee. [F185; and

(c)in an application under section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate), the interim gender recognition certificate or a certified copy within the meaning of rule 33.9A(3).]

Textual Amendments

F184Word in Sch. 1 rule 33.75(a) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(38)(a)}

F185Sch. 1 rule 33.75(c) and word inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(38)(b)}

Citation and intimationS

33.76.(1)This rule is subject to rule 33.77 (citation where address not known).

(2)It shall be the duty of the sheriff clerk to cite any person or intimate any document in connection with a simplified divorce application.

(3)The form of citation—

(a)in an application relying on the facts in section 1(2)(d) of the Act of 1976 shall be in Form F34; F186. . .

(b)in an application relying on the facts in section 1(2)(e) of the Act of 1976 shall be in Form F35.

[F187(c)in an application relying on the facts in section 1(1)(b) of the Act of 1976 shall be in Form F35A.]

[F188(4)The citation or intimation required by paragraph (2) shall be made–

(a)by the sheriff clerk by registered post or the first class recorded delivery service in accordance with rule 5.3 (postal service or intimation);

(b)on payment of an additional fee, by a sheriff officer in accordance with rule 5.4(1) [F189to (4)] (service within Scotland by sheriff officer); or

(c)where necessary, by the sheriff clerk in accordance with rule 5.5 (service on persons furth of Scotland).]

[F190(5)Where citation or intimation is made in accordance with paragraph (4)(c), the translation into an official language of the country in which service is to be executed required by rule 5.5(6) shall be provided by the party lodging the simplified divorce application.]

Textual Amendments

F186Word in Sch. 1 rule 33.76(3)(a) omitted (4.5.2006) by virtue of Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(39)(a)}

F187Sch. 1 rule 33.76(3)(c) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(39)(b)}

F188Sch. 1 rule 33.76(4) substituted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(17)(a)

F190Sch. 1 rule 33.76(5) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(17)(b)

Citation where address not knownS

33.77.(1)In a simplified divorce application in which the facts in section 1(2)(e) of the Act of 1976 (no cohabitation for [F191two] years) [F192or section 1(1)(b) of the Act of 1976 (grounds of divorce: issue of interim gender recognition certificate)] are relied on and the address of the other party to the marriage is not known and cannot reasonably be ascertained—

(a)citation shall be executed by displaying a copy of the application and a notice in Form F36 on the walls of court on a period of notice of 21 days; and

(b)intimation shall be made to—

(i)every child of the marriage between the parties who has reached the age of 16 years, and

(ii)one of the next-of-kin of the other party to the marriage who has reached that age, unless the address of such person is not known and cannot reasonably be ascertained.

(2)Intimation to a person referred to in paragraph (1)(b) shall be given by intimating a copy of the application and a notice of intimation in Form F37.

Textual Amendments

F191Word in Sch. 1 rule 33.77(1) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(40)(a)}

F192Words in Sch. 1 rule 33.77(1) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(40)(b)}

Opposition to applicationsS

33.78.(1)Any person on whom service or intimation of a simplified divorce application has been made may give notice by letter sent to the sheriff clerk that he challenges the jurisdiction of the court or opposes the grant of decree of divorce and giving the reasons for his opposition to the application.

(2)Where oposition to a simplified divorce application is made under paragraph (1), the sheriff shall dismiss the application unless he is satisfied that the reasons given for the opposition are frivolous.

(3)The sheriff clerk shall intimate the decision under paragraph (2) to the applicant and the respondent.

(4)The sending of a letter under paragraph (1) shall not imply acceptance of the jurisdiction of the court.

EvidenceS

33.79.Parole evidence shall not be given in a simplified divorce application.

DecreeS

33.80.(1)The sheriff may grant decree in terms of the simplified divorce application on the expiry of the period of notice if such application has been properly served provided that, when the application has been served in a country to which the M35Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15 November 1965 applies, decree shall not be granted until it is established to the satisfaction of the sheriff that the requirements of article 15 of that Convention have been complied with.

(2)The sheriff clerk shall, not sooner than 14 days after the granting of decree in terms of paragraph (1), issue to each party to the marriage an extract of the decree of divorce in Form F38.

Marginal Citations

M35Cmnd. 3986 (1969).

AppealsS

33.81. [F193(1)] Any appeal against an interlocutor granting decree of divorce under rule 33.80 (decree) may be made, within 14 days after the date of decree, by sending a letter to the court giving reasons for the appeal.

[F194(2)Within 4 days after receiving an appeal, the sheriff clerk must transmit to the Clerk of the Sheriff Appeal Court—

(a)the appeal;

(b)all documents and productions in the simplified divorce application.

(3)On receipt of the appeal, the Clerk of the Sheriff Appeal Court is to fix a hearing and intimate the date, time and place of that hearing to the parties.]

Textual Amendments

Applications after decreeS

33.82.Any application to the court after decree of divorce has been granted in a simplified divorce application which could have been made if it had been made in an action of divorce shall be made by minute.

PART XIISVARIATION OF COURT OF SESSION DECREES
Application and interpretation of this PartS

33.83.(1)This Part applies to an application to the sheriff for variation or recall of any order to which section 8 of the M36Act of 1966(variation of certain Court of Session orders) applies.

(2)In this Part, the “Act of 1966” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.

Marginal Citations

Form of applications and intimation to Court of SessionS

33.84.(1)An application to which this Part applies shall be made by initial writ.

(2)In such an application there shall be lodged with the initial writ a copy of the interlocutor, certified by a clerk of the Court of Session, which it is sought to vary.

(3)Before lodging the initial writ, a copy of the initial writ certified by the pursuer or his solicitor shall be lodged, or sent by first class recorded delivery post to the Deputy Principal Clerk of Session to be lodged in the process of the cause in the Court of Session in which the original order was made.

(4)The pursuer or his solicitor shall attach a certificate to the initial writ stating that paragraph (3) has been complied with.

(5)The sheriff may, on cause shown, prorogate the time for lodging the certified copy of the interlocutor required under [F195paragraph (2)].

Textual Amendments

F195Words in Sch. 1 rule 33.84(5) substituted (1.11.1996) by S.I. 1996/2445, para. 3(55)

Defended actionsS

33.85.(1)Where a notice of intention to defend has been lodged and no request is made under rule 33.87 (remit of applications to Court of Session), the pursuer shall within 14 days after the date of the lodging of a notice of intention to defend or within such other period as the sheriff may order, lodge in process the following documents (or copies) from the process in the cause in the Court of Session in which the original order was made:—

(a)the pleadings;

(b)the interlocutor sheets;

(c)any opinion of the court; and

(d)any productions on which he seeks to found.

(2)The sheriff may, on the joint motion of parties made at any time after the lodging of the documents mentioned in paragraph (1)—

(a)dispense with proof;

(b)whether defences have been lodged or not, hear the parties; and

(c)thereafter, grant decree or otherwise dispose of the cause as he thinks fit.

Transmission of process to Court of SessionS

33.86.(1)Where decree has been granted or the cause otherwise disposed of—

(a)and the period for [F196making] an appeal has elapsed without an appeal being [F197made], or

(b)after the determination of the cause on any appeal,

the sheriff clerk shall transmit to the Court of Session the sheriff court process and the documents from the process of the cause in the Court of Session which have been lodged in the sheriff court process.

(2)A sheriff court process transmitted under paragraph (1) shall form part of the process of the cause in the Court of Session in which the original order was made.

Textual Amendments

Remit of applications to Court of SessionS

33.87.(1)A request for a remit to the Court of Session under section 8(3) of the Act of 1966 shall be made by motion.

(2)The sheriff shall, in respect of any such motion, order that the cause be remitted to the Court of Session; and, within four days after the date of such order, the sheriff clerk shall transmit the whole sheriff court process to the Court of Session.

(3)A cause remitted to the Court of Session under paragraph (2) shall form part of the process of the cause in the Court of Session in which the original order was made.

PART XIIIS CHILD SUPPORT ACT 1991
Interpretation of this PartS

  • F198. . . In this Part—

  • “the Act of 1991” means the M37Child Support Act 1991;

  • “child” has the meaning assigned in section 55 of the Act of 1991;

  • [F199“maintenance calculation”] has the meaning assigned in section [F20054] of the Act of 1991.

Textual Amendments

F198Sch. 1 rule 33.88: “-(1)” at the beginning is omitted (1.11.1996) by S.I. 1996/2445, para. 3(56)(a)

F200Word in Sch. 1 rule 33.88 substituted (1.11.1996) by S.I. 1996/2445, para. 3(56)(b)

Marginal Citations

Restriction of expensesS

33.89.Where the Secretary of State is named as a defender in an action for declarator of nonparentage or illegitimacy, and the Secretary of State does not defend the action, no expenses shall be awarded against the Secretary of State.

Effect of maintenance [F201calculations]S

33.90.The sheriff clerk shall, on receiving notification that a maintenance [F202calculation] has been made, cancelled or has ceased to have effect so as to affect an order of a kind prescribed for the purposes of section 10 of the Act of 1991, endorse on the intelocutor sheet relating to that order a certificate, in Form F39 or F40, as the case may be.

Textual Amendments

Effect of maintenance [F203calculations] on extracts relating to alimentS

33.91.(1)Where an order relating to aliment is affected by a maintenance [F204calculation], any extract of that order issued by the sheriff clerk shall be endorsed with the following certificate:—

“A maintenance [F204calculation] having been made under the Child Support Act 1991 on (insert date), this order, in so far as it relates to the making or securing of periodical payments to or for the benefit of (insert name(s) of child/children), ceases to have effect from (insert date two days after the date on which the maintenance [F204calculation]was made)”.

(2)Where an order relating to aliment has ceased to have effect on the making of a maintenance [F204calculation], and that maintenance [F204calculation] is later cancelled or ceases to have effect, any extract of that order issued by the sheriff clerk shall be endorsed also with the following certificate:—

“The jurisdiction of the child support officer under the Child Support Act 1991 having terminated on (insert date), this order, in so far as it relates to (insert name(s) of child/children), again shall have effect as from (insert date of termination of child support officer’s jurisdiction)”.

.

Textual Amendments

Applications to recall or vary an interdictS

[F20533.91A.An application under section 32L(11)(b) of the Act of 1991 (orders preventing avoidance) for the variation or recall of an order for interdict is to be made by minute in the process of the action to which the application relates.]

Textual Amendments

F206PART XIVSREFERRALS TO PRINCIPAL REPORTER

Textual Amendments

F20633.92.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20633.93.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20633.94.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F207PART XVSMANAGEMENT OF MONEY PAYABLE TO CHILDREN

Textual Amendments

F207Sch. 1 Ch. 33 Pts. 14, 15 inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 33

33.95.SWhere the sheriff has made an order under section 13 of the Act of 1995 (awards of damages to children), an application by a person for an order by virtue of section 11(1)(d) of that Act (administration of child’s property) may be made in the process of the cause in which the order under section 13 of that Act was made.]

[F208PART XVISACTION OF DECLARATOR OF RECOGNITION OR NON-RECOGNITION OF A FOREIGN DECREE

Textual Amendments

Action of declarator in relation to certain foreign decreesS

33.96.(1)This rule applies to an action for declarator of recognition, or non-recognition, of

[F209(a)] a decree of divorce, nullity or separation granted outwith a member state of the European Union.

[F210(b)a decree of divorce, nullity of separation in respect of a same sex marriage when granted in a member state of the European Union.]

(2)In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ—

(a)the court, tribunal or other authority which granted the decree;

(b)the date of the decree of divorce, annulment or separation to which the action relates;

(c)the date and place of the marriage to which the decree of divorce, nullity or separation relates;

(d)the basis on which the court has jurisdiction to entertain the action;

(e)whether to the pursuer’s knowledge any other proceedings whether in Scotland or in any other country are continuing in respect of the marriage to which the action relates or are capable of affecting its validity or subsistence; and

(f)where such proceedings are continuing—

(i)the court, tribunal or authority before which the proceedings have been commenced;

(ii)the date of commencement;

(iii)the names of the parties; and

(iv)the date, or expected date of any proof (or its equivalent), in the proceedings.

(3)Where—

(a)such proceedings are continuing;

(b)the action before the sheriff is defended; and

(c)either—

(i)the initial writ does not contain the statement referred to in paragraph (2)(e), or

(ii)the particulars mentioned in paragraph (2)(f) as set out in the initial writ are incomplete or incorrect,

  • any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(f).

(4)Unless the sheriff otherwise directs, a declarator of recognition, or non-recognition, of a decree under this rule shall not be granted without there being produced with the initial writ—

(a)the decree in question or a certified copy of the decree;

(b)the marriage extract or equivalent document to which the action relates.

(5)Where a document produced under paragraph (4)(a) or (b) is not in English it shall, unless the sheriff otherwise directs, be accompanied by a translation certified by a notary public or authenticated by affidavit.

(6)For the purposes of this rule, proceedings are continuing at any time after they have commenced and before they are finally disposed of.]

Textual Amendments

Yn ôl i’r brig

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This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

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Rhagor o Adnoddau

Defnyddiwch y ddewislen hon i agor dogfennau hanfodol sy’n cyd-fynd â’r ddeddfwriaeth a gwybodaeth am yr eitem hon o ddeddfwriaeth. Gan ddibynnu ar yr eitem o ddeddfwriaeth sy’n cael ei gweld gall hyn gynnwys:

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liciwch ‘Gweld Mwy’ neu ddewis ‘Rhagor o Adnoddau’ am wybodaeth ychwanegol gan gynnwys

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  • dolenni i ddeddfwriaeth gysylltiedig ac adnoddau gwybodaeth eraill

The data on this page is available in the alternative data formats listed: