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Sheriff Courts (Scotland) Act 1907

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Sheriff Courts (Scotland) Act 1907, Cross Heading: PART III is up to date with all changes known to be in force on or before 23 December 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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PART IIISDEFENDED CIVIL PARTNERSHIP ACTIONS
[F1Notice of intention to defend and defences etc.]S

33A.34.(1)This rule applies where the defender in a civil partnership 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; or

(iii)a section 11 order; or

(c)an order–

(i)under section 16(1)(b) or (3) of the Act of 1985 M1 (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 Chapter 3 or Chapter 4 of Part 3 or section 127 of the Act of 2004; 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 CP16 before the expiry of the period of notice [F2and, at the same time, send a copy to the pursuer]; 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.

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F4(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 CP13A signed by the defender with the defences, minute of amendment or answers as the case may be.]

[F5(4A)Subject to paragraph (4B), where a defender intends to make an application for a section 11 order in respect of a child who is not a party to the action and where the initial writ does not include a crave for a section 11 order, the defender must—

(a)include in the notice of intention to defend a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

(b)when lodging the notice of intention to defend, submit a draft Form F9, showing the details that the defender proposes to include when the form is sent to the child.

(4B)Where the defender considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the defender must include in the notice of intention to defend—

(a)a crave to dispense with intimation and the seeking of the child’s views in Form F9;

(b)averments setting out the reasons why it is inappropriate to send Form F9 to the child.

(4C)The sheriff must be satisfied that the draft Form F9 submitted under paragraph (4A)(b) has been drafted appropriately.

(4D)The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

(4E)An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must—

(a)state that the Form F9 must be sent to the child in accordance with rule 33A.19B (views of the child – section 11 order sought by defender only);

(b)be signed by the sheriff.]

Abandonment by pursuerS

33A.35.Notwithstanding abandonment by a pursuer of a civil partnership action, 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

33A.36.All parties to a civil partnership action shall, except on cause shown, attend personally the hearing under rule 9.12 (Options Hearing).

Decree by defaultS

33A.37.(1)In a civil partnership 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; F6. . .

(c)to appear or be represented at any diet, [F7or

(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 civil partnership action is one mentioned in rule 33A.1(1) (a) [F8(b) or (f)], allow that action to proceed as undefended under Part II of this Chapter; or

(b)where the civil partnership action is one mentioned in rule 33A.1(1)(c) to (e), grant decree as craved; or

(c)grant decree of absolvitor; or

(d)dismiss the civil partnership action or any claim made or order sought; [F9or]

[F10(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 civil partnership action, the sheriff may dismiss that action.

(4)In a civil partnership 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.

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