Sheriff Courts (Scotland) Act 1907

CHAPTER 33A S CIVIL PARTNERSHIP ACTIONS

PART I S GENERAL PROVISIONS

Interpretation of this Chapter S

33A.1. (1) In this Chapter, “civil partnership action” means–

(a) an action of dissolution of civil partnership;

(b) an action of separation of civil partners;

(c) an action or application for an order under Chapter 3 or Chapter 4 of Part 3 of the Act of 2004;

(d) an application for a declarator or other order under section 127 of the Act of 2004;

(e) an action or application for financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004;

[F1 (f) an action for declarator of nullity of civil partnership.]

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

• “the Act of 1985” means the Family Law (Scotland) Act 1985 M1 ;

• “the Act of 1995” means the Children (Scotland) Act 1995 M2 ;

• “the Act of 2004” means the Civil Partnership Act 2004 M3 ;

• “civil partnership” has the meaning assigned in section 1(1) of the Act of 2004;

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

• “Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Gender Recognition Act 2004 M4 ;

• [F2 “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);]

• “interim gender recognition certificate” means the certificate issued under section 4 of the Gender Recognition Act 2004;

• “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 M5 ;

• “mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 M6 ;

• “order for financial provision” means, except in Part VII of this Chapter (financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004), an order mentioned in section 8(1) of the Act of 1985;

• “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;

• “relevant interdict” has the meaning assigned in section 113(2) of the Act of 2004;

• “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 M7 .

(3) For the purposes of rules 33A.2 (averments in actions of dissolution of civil partnership or separation of civil partners about other proceedings) and 33A.3 (averments where section 11 order sought) and, in relation to proceedings in another jurisdiction, Part XIII of this Chapter (sisting of civil partnership actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Textual Amendments

F1 Sch. 1 rule 33A.1(1)(f) 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(41)}

F2 Words in Sch. 1 rule 33A.1(2) inserted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(4) (with para. 4)

Marginal Citations

M1 1985 c. 37.

M2 1995 c. 36.

M3 2004 c. 33.

M4 2004 c. 7.

M5 1994 c. 39; section 2(2) was amended by the Environment Act 1995 (c. 25), Schedule 22, paragraph 232(1).

M6 2003 asp 13.

M7 Section 11 was amended by S.S.I. 2005/42.

[F3 Averments in certain civil partnership actions about other proceedings] S

33A.2. (1) This rule applies to an action of dissolution [F4 or declarator of nullity] of civil partnership or separation of civil partners.

(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 civil partnership 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 Part XIII of this Chapter.

(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

F3 Sch. 1 rule 33A.2 heading 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(42)(a)}

F4 Words in Sch. 1 rule 33A.2(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(42)(b)}

Averments where section 11 order sought S

33A.3. (1) A party to a civil partnership action who makes an application in that action for a section 11 order in respect of a child shall include in his pleadings–

(a) where that action is an action of dissolution [F5 or declarator of nullity] of civil partnership or separation of civil partners, 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 section 11 order is sought;

(b) in any other civil partnership 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 civil partnership of either of the parents of that child.

[F6 (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 section 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 party to the civil partnership 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 101(7) of the Act of 2004.

Textual Amendments

F5 Words in Sch. 1 rule 33A.3(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), para. 2(43)

F6 Sch. 1 rule 33A.3(1)(c) inserted (28.9.2009) by Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (S.S.I. 2009/284), paras. 1(1), 3(3)

Averments where identity or address of person not known S

33A.4. In a civil partnership action, where the identity or address of any person referred to in rule 33A.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 orders S

33A.5. In a civil partnership 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 Debtors (Scotland) Act 1987 F7 ) has been granted in favour of or against that party or of any other person in respect of whom the order is sought.

Textual Amendments

F7 1987 c. 18; section 106 wad amended by the Child Support, Pensions and Social Security Act 2000 (c. 19), Schedule 3, paragraph 7(3).

Averments where aliment or financial provision sought S

33A.6. (1) In this rule–

• “the Act of 1991” means the Child Support Act 1991 F8 ;

• “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;

• “maintenance calculation” has the meaning assigned in section 54 of the Act of 1991.

(2) A civil partnership action containing a crave relating to aliment and to which section 8(6), (7), (8), or (10) of the Act of 1991 F9 (top up maintenance orders) applies shall–

(a) include averments stating, where appropriate–

(i) that a maintenance calculation under section 11 of that Act (maintenance calculations) is in force;

(ii) the date of the maintenance calculation;

(iii) the amount and frequency of periodical payments of child support maintenance fixed by the maintenance calculation; 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 calculation referred to in sub paragraph (a).

(3) A civil partnership 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; or

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

(4) A civil partnership 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

F8 1991 c. 48.

F9 Section 8 was amended by S.I. 2003/192.

Warrants and forms for intimation S

33A.7. (1) Subject to [F10 paragraph (5) and rule 33A.7A (warrants and forms for intimation to a child and for seeking a child’s views)], in the initial writ in a civil partnership 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) every person who was a child of the family (within the meaning of section 101(7) of the Act of 2004) and 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 CP1 shall be attached to the copy of the initial writ intimated to any such person;

(b) 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) and (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained; and

(ii) any person who holds the office of guardian, or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000 M8 ,

and a notice of intimation in Form CP2 shall be attached to the copy of the initial writ intimated to any such person;

(c) in an action of dissolution [F11 or declarator of nullity] of civil partnership or separation of civil partners 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 CP3 shall be attached to the initial writ intimated to that authority;

(ii) who, being a child of one party to the civil partnership, has been accepted as a child of the family by the other party to the civil partnership and who is liable to be maintained by a third party, to that third party, and a notice of intimation in Form CP3 shall be attached to the initial writ intimated to that third party; or

(iii) in respect of whom a third party in fact exercises care or control, to that third party, and a notice of intimation in Form CP4 shall be attached to the initial writ intimated to that third party;

(d) in an action where the pursuer craves a 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 CP5 shall be attached to the initial writ intimated to any such parent or guardian;

F12 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F13 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) in an action where the pursuer makes an application for an order under section 8(1)(aa) of the Act of 1985 M9 (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 CP8 shall be attached to the initial writ intimated to any such person;

(h) 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 CP9 shall be attached to the initial writ intimated to any such person;

(i) in an action where the pursuer makes an application for an order under Chapter 3 of Part 3 of the Act of 2004, where the application is under section 102(1)(e), 102(4)(a), 103(1), 103(2), 104, 107 or 112 of that Act, and the entitled civil partner is a tenant or occupies the family 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 CP10 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 8(1)(ba) of the Act of 1985 M10 (orders under section 12A of the Act of 1985 for pension lump sum), to the person responsible for the pension arrangement, and a notice of intimation in Form CP11 shall be attached to the initial writ intimated to any such person; F14 ...

(k) in an action where a pursuer makes an application for an order under section 8(1)(baa) of the Act of 1985 M11 (pension sharing orders), to the person responsible for the pension arrangement and a notice of intimation in Form CP12 shall be attached to the initial writ intimated to any such person.

[F15 (l) 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 CP12A shall be attached to the initial writ intimated to that Board; and

(m) 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 CP12B shall be attached to the initial writ intimated to that Board.]

(2) Expressions used in paragraph (1)(i) which are also used in Chapter 3 of Part 3 of the Act of 2004 have the same meaning as in that Chapter.

(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.

F16 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Where the address of a person mentioned in paragraph (1)(c), (d), F17 ... (g), (h), (i), (j) or (k) [F18 or a child mentioned in rule 33A.7A(1)] 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 civil partnership 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.

F19 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F10 Words in Sch. 1 rule 33A.7(1) substituted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(11)(a)(i) (with para. 4)

F11 Words in Sch. 1 rule 33A.7(1)(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), para. 2(44)

F12 Sch. 1 rule 33A.7(1)(e) omitted (1.1.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 (S.S.I. 2010/416), paras. 1(1), 7(3)(a)(i) (with para. 7(5))

F13 Sch. 1 rule 33A.7(1)(f) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(11)(a)(ii) (with para. 4)

F14 Word in Sch. 1 rule 33A.07(1)(j) omitted (6.4.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (S.S.I. 2011/193), paras. 1(2), 15(4)(a) (with para. 20)

F15 Sch. 1 rule 33A.7(1)(l)(m) inserted (6.4.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (S.S.I. 2011/193), paras. 1(2), 15(4)(b) (with para. 20)

F16 Sch. 1 rule 33A.7(4) omitted (1.1.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 (S.S.I. 2010/416), paras. 1(1), 7(3)(a)(ii) (with para. 7(5))

F17 Word in Sch. 1 rule 33A.7(5) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(11)(b)(i) (with para. 4)

F18 Words in Sch. 1 rule 33A.7(5) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(11)(b)(ii) (with para. 4)

F19 Sch. 1 rule 33A.7(7) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(11)(c) (with para. 4)

Marginal Citations

M8 2000 asp 4.

M9 Section 8(1)(aa) was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 74 and Schedule 8, paragraph 34(b).

M10 Section 8(1)(ba) was inserted by the Pensions Act 1995 (c. 26), section 167(1).

M11 Section 8(1)(baa) was inserted by the Welfare Reform and Pensions Act 1999 (c. 30), section 20(1).

Warrants and forms for intimation to a child and for seeking a child’s views S

[F20 33A.7A. (1) Subject to paragraph (2), in an action which includes a crave for a section 11 order in respect of a child who is not a party to the action, the pursuer must—

(a) include in the initial writ a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

(b) when presenting the initial writ for warranting, submit a draft Form F9, showing the details that the pursuer proposes to include when the form is sent to the child.

(2) Where the pursuer 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 pursuer must include in the initial writ—

(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.

(3) The sheriff must be satisfied that the draft Form F9 submitted under paragraph (1)(b) has been drafted appropriately.

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

(5) 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 in accordance with rule 33A.7A(6);

(b) be signed by the sheriff.

(6) The Form F9 must be sent in accordance with—

(a) rule 33A.19 (views of the child – undefended actions), where the action is undefended;

(b) rule 33A.19A (views of the child – section 11 order sought by pursuer only), where the action is defended and a section 11 order is sought by the pursuer only;

(c) rule 33A.19B (views of the child – section 11 order sought by defender only), where a section 11 order is sought by the defender only; or

(d) rule 33A.19C (views of the child – section 11 orders sought by both pursuer and defender), where a section 11 order is sought by both parties.]

Textual Amendments

F20 Sch. 1 rule 33A.7A inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(12) (with para. 4)

Intimation where alleged association S

33A.8. (1) In a civil partnership action where the pursuer founds upon an alleged 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 CP13 shall be intimated to the named person.

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

[F21 Productions in action of dissolution of civil partnership or where a section 11 order or order for financial provision may be made] S

33A.9. (1) This rule applies unless the sheriff directs otherwise.

(2) In an action of dissolution [F22 or declarator of nullity] of civil partnership, a warrant for citation shall not be granted without there being produced with the initial writ–

(a) an extract of the relevant entry in the civil partnership register or an equivalent document; and

(b) where the ground of action is that an interim gender recognition certificate has, after the date of registration of the civil partnership, been issued to either of the civil partners–

(i) 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

(ii) where the defender is the subject of the interim gender recognition certificate, a certified copy of the interim gender recognition certificate.

(3) In a civil partnership 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.

(4) 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.

[F23 (5) In a civil partnership action which includes a crave for an order for financial provision, the pursuer must lodge a completed Form CP13A signed by the pursuer with the initial writ or minute of amendment as the case may be.]

Textual Amendments

F21 Sch. 1 rule 33A.9 heading substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(4)(b) (with para. 15)

F22 Words in Sch. 1 rule 33A.9(2) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), para. 2(45)

F23 Sch. 1 rule 33A.9(5) inserted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(4)(a) (with para. 15)

Warrant of citation S

33A.10. The warrant of citation in a civil partnership action shall be in Form CP14.

Form of citation and certificate S

33A.11. (1) Subject to rule 5.6 (service where address of person is not known), citation of a defender shall be in Form CP15, 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 CP16.

(2) The certificate of citation shall be in Form CP17 which shall be attached to the initial writ.

Intimation to local authority S

[F24 33A.12. (1) In any civil partnership 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 CP6.

(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

F24 Sch. 1 rule 33A.12 substituted (1.1.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 (S.S.I. 2010/416), paras. 1(1), 7(3)(b) (with para. 7(5))

Service in cases of mental disorder of defender S

33A.13. (1) In a civil partnership 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 CP15;

(b) any notice required by rule 33A.14(1);

(c) a request in Form CP18;

(d) a form of certificate in Form CP19 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 33A.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 CP19 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 dissolution of civil partnership or separation of civil partners S

33A.14. (1) In the following actions of dissolution of civil partnership or separation of civil partners there shall be attached to the copy of the initial writ served on the defender–

(a) in an action relying on section 117(3)(c) of the Act of 2004 (no cohabitation for [F25 one year] with consent of defender to decree)–

(i) which is an action of dissolution of civil partnership, a notice in Form CP20 and a notice of consent in Form CP21;

(ii) which is an action of separation of civil partners, a notice in Form CP22 and a form of notice of consent in Form CP23;

(b) in an action relying on section 117(3)(d) of the Act of 2004 (no cohabitation for [F26 two] years)–

(i) which is an action of dissolution of civil partnership, a notice in Form CP24;

(ii) which is an action of separation of civil partners, a notice in Form CP25.

[F27 (c) in an action relying on section 117(2)(b) of the Act of 2004 (grounds of dissolution: interim gender recognition certificate), a notice in Form CP25A.]

(2) The certificate of citation 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

F25 Words in Sch. 1 rule 33A.14(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(46)(a)}

F26 Word in Sch. 1 rule 33A.14(1)(b) 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(46)(b)}

F27 Sch. 1 rule 33A.14(1)(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(46)(c)}

Orders for intimation S

33A.15. (1) [F28 Except in relation to intimation to a child in Form F9, in any] civil partnership action, the sheriff may, at any time–

(a) F29 ... 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.

F30 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a party makes a crave or averment in a civil partnership 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 33A.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

F28 Words in Sch. 1 rule 33A.15(1) substituted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(13)(a)(i) (with para. 4)

F29 Words in Sch. 1 rule 33A.15(1)(a) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(13)(a)(ii) (with para. 4)

F30 Sch. 1 rule 33A.15(2) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(13)(b) (with para. 4)

Appointment of curators ad litem to defenders S

33A.16. (1) [F31 This rule applies to a civil partnership action] where it appears to the court that the defender [F32 has] a mental disorder.

(2) In an action to which this rule applies, the sheriff shall [F33 , after the expiry of the period for lodging a notice of intention to defend]–

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

[F34 (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 any notice in [F35 Form G5A sent to the curator ad litem] by the sheriff clerk.

[F36 (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.]

[F37 (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.

[F38 (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 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 [F39 is not incapable of instructing a solicitor], he is discharged.

Textual Amendments

F31 Words in Sch. 1 rule 33A.16 substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 6(2) (with para. 15)

F32 Word in Sch. 1 rule 33A.16(1) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(a) (with para. 4)

F33 Words in Sch. 1 rule 33A.16(2) inserted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(b)(i) (with para. 4)

F34 Sch. 1 rule 33A.16(2)(b) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(b)(ii) (with para. 4)

F35 Words in Sch. 1 rule 33A.16(3)(b) substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(18) (with para. 3)

F36 Sch. 1 rule 33A.16(4) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(c) (with para. 4)

F37 Sch. 1 rule 33A.16(5) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(d) (with para. 4)

F38 Sch. 1 rule 33A.16(8)-(8C) substituted for Sch. 1 rule 33A.16(8) (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(e) (with para. 4)

F39 Words in Sch. 1 rule 33A.16(9)(c) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(f) (with para. 4)

Applications for sist S

33A.17. An application for a sist, or the recall of a sist, under Part XIII of this Chapter shall be made by written motion.

Notices of consent to dissolution of civil partnership or separation of civil partners S

33A.18. (1) Where, in an action of dissolution of civil partnership or separation of civil partners in which the facts in section 117(3)(c) of the Act of 2004 (no cohabitation for [F40 one year] with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree of dissolution of civil partnership or separation of civil partners he shall do so by giving notice in writing in Form CP21 (dissolution) or Form CP23 (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 dissolution of civil partnership or separation of civil partners where the initial writ includes, for the purposes of section 117(3)(c) of the Act of 2004, 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 117(3) of the Act of 2004 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

F40 Words in Sch. 1 rule 33A.18(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(48)}

Views of the child – undefended actions S

[F41 33A.19. (1) This rule applies to undefended actions in which a section 11 order is sought and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The pursuer must—

(a) following the expiry of the period of notice, send the child the Form F9 that was submitted and approved under rule 33A.7A (warrants and forms for intimation to a child and for seeking a child’s views);

(b) lodge with the minute for decree a certificate of intimation in Form F9A;

(c) not send the child a copy of the initial writ.

(3) Except on cause shown, the sheriff must not grant decree in the period of 28 days following the date on which the Form F9 was sent to the child.

Textual Amendments

F41 Sch. 1 rules 33A.19-33A.19D substituted for Sch. 1 rule 33A.19 (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(14) (with para. 4)

Views of the child – section 11 order sought by pursuer only S

33A.19A. (1) This rule applies to defended actions in which only the pursuer seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The pursuer must—

(a) no later than 14 days after the notice of intention to defend is lodged, send the child the Form F9 that was submitted and approved under rule 33A.7A (warrants and forms for intimation to a child and for seeking a child’s views);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the initial writ, the notice of intention to defend or the defences.

Textual Amendments

F41 Sch. 1 rules 33A.19-33A.19D substituted for Sch. 1 rule 33A.19 (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(14) (with para. 4)

Views of the child – section 11 order sought by defender only S

33A.19B. (1) This rule applies to defended actions in which only the defender seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The defender must—

(a) no later than 14 days after the notice of intention to defend is lodged, send the child the Form F9 that was submitted and approved under rule 33A.34 (notice of intention to defend and defences);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the initial writ, the notice of intention to defend or the defences.

Textual Amendments

F41 Sch. 1 rules 33A.19-33A.19D substituted for Sch. 1 rule 33A.19 (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(14) (with para. 4)

Views of the child – section 11 orders sought by both pursuer and defender S

33A.19C. (1) This rule applies to defended actions in which section 11 orders are sought by both the pursuer and the defender and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The pursuer must—

(a) no later than 14 days after the notice of intention to defend is lodged, send the child the Form F9 that was submitted and approved under rule 33A.7A (warrants and forms for intimation to a child and for seeking a child’s views), amended so as also to narrate the section 11 order sought by the defender;

(b) on the same day—

(i) lodge a certificate of intimation in Form F9A;

(ii) send the defender a copy of the Form F9 that was sent to the child;

(c) not send the child a copy of the initial writ, the notice of intention to defend or the defences.

Textual Amendments

F41 Sch. 1 rules 33A.19-33A.19D substituted for Sch. 1 rule 33A.19 (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(14) (with para. 4)

Views of the child – the sheriff’s role S

33A.19D. (1) In a civil partnership action, in relation to any matter affecting a child, where that child has—

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

(b) otherwise indicated to the court a wish to express views,

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

(2) Where the sheriff is considering making an interim section 11 order before the views of the child have been obtained or heard, the sheriff must consider whether, and if so how, to seek the child’s views in advance of making the order.

(3) Where a child has indicated a wish to express views, the sheriff must order any steps to be taken that the sheriff considers appropriate to obtain or hear the views of that child.

(4) The sheriff must not grant an order in a civil partnership action, in relation to any matter affecting a child who has expressed views, unless the sheriff has given due weight to the views expressed by that child, having regard to the child’s age and maturity.

(5) In any action in which a section 11 order is sought, where Form F9 has not been sent to the child concerned or where it has been sent but the sheriff considers that the passage of time requires it to be sent again, the sheriff may at any time order either party to—

(a) send the Form F9 to that child within a specified timescale;

(b) on the same day, lodge—

(i) a copy of the Form F9 that was sent to the child;

(ii) a certificate of intimation in Form F9B.]

Textual Amendments

F41 Sch. 1 rules 33A.19-33A.19D substituted for Sch. 1 rule 33A.19 (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(14) (with para. 4)

Recording of views of the child S

33A.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.

Child welfare reporters S

[F42 33A.21. (1) At any stage of a civil partnership 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 [F43 and include a direction as to whether a copy of the report is to be provided to the parties under paragraph (9)(d)]; F44 ...

(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 [F45 ; and

(e) where the appointment is under paragraph (1)(b) and seeking the views of the child forms part of the enquiries to be undertaken, include a direction as to whether the views of the child should be recorded in a separate report and, if so, whether a copy of that report is to be provided to the parties under paragraph (9)(d).]

(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 CP38.

(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 [F46 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

F42 Sch. 1 rules 33A.21, 33A.21A substituted for rule 33A.21 (21.3.2016) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2016 (S.S.I. 2016/102), paras. 1(2), 3(2) (with para. 5)

F43 Words in Sch. 1 rule 33A.21(3)(c) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(15)(a) (with para. 4)

F44 Word in Sch. 1 rule 33A.21(3) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(15)(b) (with para. 4)

F45 Sch. 1 rule 33A.21(3)(e) and word inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(15)(c) (with para. 4)

F46 Words in Sch. 1 rule 33A.21(6) substituted (7.7.2016) by Act of Sederunt (Sheriff Appeal Court Rules 2015 and Sheriff Court Rules Amendment) (Miscellaneous) 2016 (S.S.I. 2016/194), paras. 1(2), 3(3)

Appointment of local authority to report on a child S

33A.21A. (1) This rule applies where, in a civil partnership action, 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 a child.

(2) The following provisions of rule 33A.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

F42 Sch. 1 rules 33A.21, 33A.21A substituted for rule 33A.21 (21.3.2016) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2016 (S.S.I. 2016/102), paras. 1(2), 3(2) (with para. 5)

Referral to family mediation S

[F47 33A.22. (1) In any civil partnership action, where the sheriff considers it appropriate to do so the sheriff may, at any stage of the action, refer the action, or part thereof, to a mediator accredited to a specified family mediation organisation.

(2) The sheriff must have particular regard to any averments of domestic abuse when considering the appropriateness of referring the action, or part thereof, to a mediator under paragraph (1).

(3) In this rule any civil partnership action means an action to which the Civil Evidence (Family Mediation) (Scotland) Act 1995 applies.]

Textual Amendments

F47 Sch. 1 rule 33A.22 substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(19) (with para. 3)

Child Welfare Hearing S

33A.23. (1) Where–

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

(c) in any other circumstances in a civil partnership 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 [F48 to be heard either at the same time as the Initial Case Management Hearing or] on the first suitable court date occurring not sooner than [F49 21 days and not later than 49 days after the last date for lodging of the notice of intention to defend], unless the sheriff directs the hearing to be held on an earlier date.

[F50 (2) On fixing the date for the Child Welfare Hearing the sheriff clerk must—

(a) if the Child Welfare Hearing is to be heard at the same time as the Initial Case Management Hearing, intimate the date on which both hearings will take place to parties in Form G5A; or

(b) if the Child Welfare Hearing is to be heard at a different time from the Initial Case Management Hearing, intimate the date of the Child Welfare Hearing to 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.

[F51 (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, make such order, if any, or order further procedure, as he thinks fit, and

(b) ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.]

(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

F48 Words in Sch. 1 rule 33A.23(1) inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(20)(a)(i) (with para. 3)

F49 Words in Sch. 1 rule 33A.23(1) substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(20)(a)(ii) (with para. 3)

F50 Sch. 1 rule 33A.23(2) substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(20)(b) (with para. 3)

F51 Sch. 1 rule 33A.23(4) substituted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), art. 2(10)

Applications for orders to disclose whereabouts of children S

33A.24. (1) An application in a civil partnership action for an order under section 33(1) of the Family Law Act 1986 F52 (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.

Textual Amendments

F52 1986 c. 55.

Applications in relation to removal of children S

33A.25. (1) An application in a civil partnership action for leave under section 51(1) of the Children Act 1975 F53 (authority to remove a child from the care and possession of the applicant for a 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 in a civil partnership action under section 23(2) of the Child Abduction and Custody Act 1985 F54 (declarator that removal of child from United Kingdom was unlawful) shall be made–

(a) in an action depending before the sheriff–

(i) 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

F53 1975 c. 72.

F54 1985 c. 60.

Intimation to local authority before supervised contact order S

33A.26. Where in a civil partnership action the sheriff, at his own instance or on the motion of a party, is considering making a 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 for 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 the 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, do so within that period.

Joint minutes S

33A.27. Where any parties in a civil partnership action have reached agreement in relation to—

(a) a section 11 order;

(b) aliment for a child; or

(c) an order for financial provision,

a joint minute may be entered into expressing that agreement; and, subject to rule 33A.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.

Affidavits S

33A.28. The sheriff in a civil partnership action may accept evidence by affidavit at any hearing for an order or interim order.

PART II S UNDEFENDED CIVIL PARTNERSHIP ACTIONS

Evidence in certain undefended civil partnership actions S

33A.29. (1) This rule–

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

(i) for financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004; or

(ii) for an order under Chapter 3 or Chapter 4 of Part 3 or section 127 of the Act of 2004;

(b) applies to a civil partnership action in which a curator ad litem has been appointed under rule 33A.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 civil partnership action which proceeds at any stage as undefended where the sheriff so directs;

(d) applies to the merits of a civil partnership 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 affidavits.

(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.

Procedure for decree in actions under rule 33A.29 S

33A.30. (1) In an action to which rule 33A.29 (evidence in certain undefended civil partnership 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 CP27 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 decree S

33A.31. In an action to which rule 33A.29 (evidence in certain undefended civil partnership actions) applies, the sheriff clerk shall, after the expiry of 14 days after the grant of decree under rule 33A.30 (procedure for decree in actions under rule 33A.29), issue to the pursuer and the defender an extract decree.

No recording of evidence S

33A.32. It shall not be necessary to record the evidence in any proof in a civil partnership action which is not defended.

Disapplication of Chapter 15 S

33A.33. Other than rule 15.1(1), Chapter 15 (motions) shall not apply to a civil partnership action in which no notice of intention to defend has been lodged, or to a civil partnership action in so far as it proceeds as undefended.

Late appearance and application for recall by defenders S

[F55 33A.33A. (1) In a cause mentioned in rule 33A.1(a), (b) or (f), 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.

[F56 (4A) Where the sheriff makes an order under paragraph (1) or (3), the sheriff must order any steps to be taken that the sheriff considers appropriate to obtain or hear the views of the child in relation to any section 11 order sought by the defender.]

(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

F55 Sch. 1 rule 33A.33A inserted (1.7.2008) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 (S.S.I. 2008/223), art. 2(3)

F56 Sch. 1 rule 33A.33A(4A) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(16) (with para. 4)

PART III S DEFENDED CIVIL PARTNERSHIP ACTIONS

General provisions S

[F57 33A.33B. (1) Chapters 9 (standard procedure in defended causes) and 10 (additional procedure) do not apply to a civil partnership action in which a notice of intention to defend has been lodged in accordance with rule 33A.34 (notice of intention to defend and defences etc.).

(2) Subject to paragraph (3), a civil partnership action in which a notice of intention to defend has been lodged must follow the procedure set out in this Part of this Chapter.

(3) The sheriff may, in exceptional circumstances, of the sheriff’s own motion or on the motion of a party, disapply any rule mentioned in this Part of this Chapter.]

Textual Amendments

F57 Sch. 1 rule 33A.33B inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(21) (with para. 3)

[F58 Notice 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 M12 (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 [F59 and, 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.

F60 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F61 (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.]

[F62 (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 F63 ... 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.]

Textual Amendments

F58 Sch. 1 rule 33A.34 heading substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(5)(b) (with para. 15)

F59 Words in Sch. 1 rule 33A.34(2)(a) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(a) (with para. 4)

F60 Sch. 1 rule 33A.34(3) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(b) (with para. 4)

F61 Sch. 1 rule 33A.34(4) inserted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(5)(a) (with para. 15) (as amended by S.S.I. 2012/221, paras. 1(1), 2(2)(b))

F62 Sch. 1 rule 33A.34(4A)-(4E) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(c) (with para. 4)

F63 Words in Sch. 1 rule 33A.34(4A) omitted (25.9.2023) by virtue of Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(22) (with para. 3)

Marginal Citations

M12 Section 16(3) was amended by the Child Support, Pensions and Social Security Act 2000 (c. 19), Schedule 3, paragraph 5.

Abandonment by pursuer S

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 Case Management Hearings S

[F64 33A.36. All parties must, except on cause shown, attend personally case management hearings under rules 33A.36J (Initial Case Management Hearing) and 33A.36P (Full Case Management Hearing).]

Textual Amendments

F64 Sch. 1 rule 33A.36 substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(23) (with para. 3)

Fixing of date and time for Initial Case Management Hearing S

[F65 33A.36A. (1) On the lodging of a notice of intention to defend under rule 33A.34 (notice of intention to defend and defences etc.) the sheriff clerk must fix a date and time for an Initial Case Management Hearing which date must be on the first suitable court day occurring not sooner than 21 days and not later than 49 days after the last date for the lodging of the notice of intention to defend.

(2) In cases involving a crave for a section 11 order the sheriff must have regard to holding the Initial Case Management Hearing and the Child Welfare Hearing at the same time.

(3) On fixing the date for the Initial Case Management Hearing, the sheriff clerk must—

(a) intimate forthwith to the parties in Form G5A—

(i) the last date for lodging defences;

(ii) the date for the return of the initial writ;

(iii) the date of the Initial Case Management Hearing;

(iv) whether a Child Welfare Hearing is to be held at the same time as the Initial Case Management Hearing;

(b) prepare an interlocutor addressing all of the matters in sub-paragraph (a) for the sheriff to sign.

(4) The fixing of the date of the Initial Case Management Hearing does not affect the right of a party to make any incidental application to the court.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Alteration of date and time for Initial Case Management Hearing S

33A.36B. (1) Subject to paragraph (2), at any time before the date and time fixed under rule 33A.36A (fixing of date and time for Initial Case Management Hearing) or under this rule, the sheriff may of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

(a) discharge the Initial Case Management Hearing or, where fixed, the Child Welfare Hearing or both, as the case may be; and

(b) fix a new date and time for either the Initial Case Management Hearing or the Child Welfare Hearing or both, as the case may be.

(2) The date and time of any hearing fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing but must be fixed for a date within the period specified in rule 33A.36A(1) or the first available court date thereafter.

(3) Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

(a) fix a date, time and place for the parties to be heard;

(b) prepare and sign an interlocutor recording those dates, times and places for the sheriff to sign.

(4) The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

(5) On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

(a) that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

(b) the last date for lodging defences, if appropriate;

(c) the last date for adjustment, if appropriate;

(d) the new date and time fixed for any hearing under paragraph (1)(b).

(6) Any reference in these Rules to the Initial Case Management Hearing, the Child Welfare Hearing or a continuation of either includes a reference to an Initial Case Management Hearing or Child Welfare Hearing for which a date and time has been fixed under this rule.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Return of initial writ S

33A.36C. Subject to rule 33A.36D (lodging of pleadings before Initial Case Management Hearing) the pursuer must return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days of the expiry of the period of notice in accordance with the date intimated on Form G5A.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Lodging of pleadings before Initial Case Management Hearing S

33A.36D. Where any hearing, whether by motion or otherwise, is fixed before the Initial Case Management Hearing, each party shall lodge in process a copy of the party’s pleadings, or where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Process folder S

33A.36E. (1) On receipt of the notice of intention to defend, the sheriff clerk must prepare a process folder which must include—

(a) interlocutor sheets;

(b) duplicate interlocutor sheets;

(c) a production file;

(d) a motion file;

(e) an inventory of process.

(2) Any production or part of process lodged in cause must be placed in the process folder.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Defences S

33A.36F. (1) Where a notice of intention to defend has been lodged, the defender must lodge defences within 14 days after the expiry of the period of notice.

(2) Defences must be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and must have appended a note of the pleas-in-law of the defender.

(3) Defences which include a counterclaim must commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and must include—

(a) answers to the condescendence of the initial writ;

(b) a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences;

(c) appropriate pleas-in-law.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Implied admissions S

33A.33G. Every statement of fact made by a party must be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party will be deemed to have admitted that statement of fact.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Sisting S

33A.36H. (1) The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, sist the action until a specified date.

(2) Where the action is sisted, the sheriff clerk must—

(a) prepare an interlocutor specifying the reason for the sist and the date specified in paragraph (1) for the sheriff to sign;

(b) fix a date for a review of sist hearing not later than 30 days following the expiration of the sist;

(c) intimate the date of the review of sist hearing to each party.

(3) Where a cause has been sisted, any period for adjustment before the sist is to be reckoned as a part of the period for adjustment.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Open record S

33A.36I. The sheriff may, at any time before the closing of the record in a civil partnership action, of the sheriff’s own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Initial Case Management Hearing S

33A.36J. (1) At the Initial Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2) It is be the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

(3) At the Initial Case Management Hearing each party must address the court on—

(a) any matters that are capable of agreement;

(b) the matters that are in dispute between the parties;

(c) any matters of potential complexity or difficulty;

(d) any valuations that are likely to be required;

(e) any skilled witness evidence that is likely to be required and the scope for joint instruction;

(f) whether additional steps require to be taken to give a child an opportunity to express the child’s views;

(g) whether steps require to be taken to investigate any facts or circumstances relating to a child;

(h) the suitability of the action for referral to mediation;

(i) whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

(j) the scope for use of affidavits and other documents in place of oral evidence;

(k) the extent to which the parties have complied with any orders made by the court;

(l) the number and availability of witnesses;

(m) the content, volume and form of productions;

(n) the requirement for access to IT equipment to view productions;

(o) whether sanction is sought for the employment of counsel;

(p) the progress of any legal aid application.

(4) At the Initial Case Management Hearing, the sheriff must fix a date and time for a Full Case Management Hearing which date must be on the first suitable court day occurring—

(a) in cases involving a crave for a section 11 order only, not sooner than 16 weeks and not later than 24 weeks after the last date for the lodging of defences;

(b) in all other cases, not sooner than 20 weeks and not later than 24 weeks after the last date for the lodging of defences.

(5) Following the Initial Case Management Hearing the sheriff clerk must intimate forthwith to the parties in Form G6B—

(a) the last date for lodging a note of the basis for any preliminary pleas;

(b) the last date for adjustment;

(c) the last date for lodging a copy of the record;

(d) the date of the Full Case Management Hearing.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Alteration of date and time for Full Case Management Hearing S

33A.36K. (1) Subject to paragraph (2), at any time before the date and time fixed under rule 33A.36J (Initial Case Management Hearing) or under this rule, the sheriff may, of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

(a) discharge the Full Case Management Hearing; and

(b) fix a new date and time for a Full Case Management Hearing.

(2) The date and time of any hearing to be fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing, but must be fixed for a date within the relevant period specified in rule 33A.36J(4) or the first available court date thereafter.

(3) Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

(a) fix a date, time and place for the parties to be heard;

(b) prepare an interlocutor recording those dates, times and places for the sheriff to sign.

(4) The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

(5) On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

(a) that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

(b) the last date for lodging a note of basis of preliminary pleas, if appropriate;

(c) the last date for adjustment, if appropriate;

(d) the last date for lodging a copy of the record, if appropriate;

(e) the new date and time fixed for the hearing under paragraph (1)(b).

(6) Any reference in these Rules to the Full Case Management Hearing includes a reference to a Full Case Management Hearing for which a date and time has been fixed under this rule.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Pre-Hearing Meeting S

33A.36L. (1) In advance of the Full Case Management Hearing the parties must hold a pre-hearing meeting, at which parties must—

(a) discuss settlement of the action;

(b) agree, so far as is possible, the matters which are not in dispute between them;

(c) discuss the information referred to in rule 33A.36P(3) (Full Case Management Hearing).

(2) Not later than 2 days before the Full Case Management Hearing the pursuer must lodge with the court a joint minute of the pre-hearing meeting signed by both parties, addressing the points in rule 33A.36P(3) or explain to the sheriff why such a minute has not been lodged.

(3) If a party is not present during the pre-hearing meeting, that party’s representative must be able to contact the party during the meeting and be in full possession of all relevant facts.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Adjustment of pleadings S

33A.36M. (1) Parties may adjust their pleadings until 14 days before the date of the Full Case Management Hearing or any continuation of it.

(2) Any adjustments must be exchanged between parties and not lodged in process.

(3) Parties are responsible for maintaining a record of adjustments made during the period for adjustment.

(4) No adjustments are permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Record for Full Case Management Hearing S

33A.36N. (1) The pursuer must, at the end of the period for adjustment referred to in rule 33A.36M(1) (adjustment of pleadings) and before the Full Case Management Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record.

(2) Not later than 2 days before the Full Case Management Hearing, the pursuer must lodge a certified copy of the record in process.

(3) Where the Full Case Management Hearing is continued under rule 33A.36P(7) and further adjustment or amendment is made to the record, a copy of the record as adjusted or amended, certified by the pursuer, must be lodged in process not later than 2 days before the Full Case Management Hearing so continued.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Exchange of lists of witnesses S

33A.36O. (1) Not later than 7 days before the Full Case Management Hearing, each party must—

(a) intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence they intend to rely at proof;

(b) lodge a copy of that list in process.

(2) A party who seeks to rely on the evidence of a person not on the list intimated under paragraph (1)(a) must, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(3) The list of witnesses intimated under paragraph (1)(a) must include—

(a) the name, occupation (where known) and address of each witness;

(b) a summary of up to 50 words on the matters to which each witness is expected to speak;

(c) details of whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004 and whether any child witness notice under section 12(2) of that Act or vulnerable witness application under section 12(6) of that Act has been lodged in respect of that witness.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Full Case Management Hearing S

33A.36P. (1) At the Full Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2) It is the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

(3) At the Full Case Management Hearing each party must address the court on—

(a) any matters that are capable of agreement;

(b) the matters that are in dispute between the parties;

(c) any matters of potential complexity or difficulty;

(d) any valuations that are likely to be required;

(e) any expert or skilled witness evidence that is likely to be required and the scope for joint instruction;

(f) whether additional steps require to be taken to give a child an opportunity to express the child’s views;

(g) whether steps require to be taken to investigate any facts or circumstances relating to a child;

(h) the suitability of the action for referral to mediation;

(i) whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

(j) the scope for use of affidavits and other documents in place of oral evidence;

(k) the extent to which the parties have complied with any orders made by the court;

(l) the number and availability of witnesses;

(m) the content, volume and form of productions;

(n) the requirement for access to IT equipment to view productions;

(o) whether sanction is sought for the employment of counsel;

(p) the progress of any legal aid application.

(4) After having heard parties at the Full Case Management Hearing the sheriff must close the record, fix a pre-proof hearing in accordance with Chapter 28A (pre-proof hearing) and—

(a) appoint the action to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such matter as the sheriff thinks fit;

(b) consider any note lodged under rule 22.1 (note of basis of preliminary pleas), appoint the cause to a proof before answer and make such orders as to the extent of the proof, the lodging of a joint minute of admissions or agreement, or such other matters as the sheriff thinks fit; or

(c) consider any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

(5) The diet fixed under paragraph (4)—

(a) is to be assigned for the appropriate number of days for resolution of the issues with reference to the information provided under paragraph (3) and subject to paragraph (6);

(b) may only be extended or varied on exceptional cause shown and subject to such orders (including awards of expenses) as the sheriff considers appropriate.

(6) The sheriff may make such orders as thought fit to ensure compliance with this rule and the expeditious resolution of the issues in dispute, including—

(a) restricting the issues for proof;

(b) the scope for instruction of a joint expert or a meeting between skilled persons;

(c) excluding specified documents, reports or witnesses from proof;

(d) fixing other hearings;

(e) awarding expenses.

(7) The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, allow a continuation of the Full Case Management Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

(8) On closing the record—

(a) where there are no adjustments made since the lodging of the record under rule 33A.36N (record for Full Case Management Hearings), that record becomes the closed record;

(b) where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Judicial continuity S

33A.36Q. Where possible, the same sheriff is to preside—

(a) the Initial Case Management Hearings;

(b) the Full Case Management Hearing;

(c) the pre-proof hearing;

(d) where fixed, any—

(i) Child Welfare Hearing;

(ii) proof;

(iii) proof before answer;

(iv) debate.]

Textual Amendments

F65 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Decree by default S

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; F66 . . .

(c) to appear or be represented at any diet, [F67 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 civil partnership action is one mentioned in rule 33A.1(1) (a) [F68 (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; [F69 or]

[F70 (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.

Textual Amendments

F66 Word in Sch. 1 rule 33.37(1)(b) omitted (18.8.2006) by virtue of Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(a)

F67 Sch. 1 rule 33.37(1)(d) and word inserted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(b)

F68 Words in Sch. 1 rule 33A.37(2)(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(49)}

F69 Word in Sch. 1 rule 33A.37(2)(d) substituted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(c)

F70 Sch. 1 rule 33A.37(2)(da) inserted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(d)

PART IV S APPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS

Application and interpretation of this Part S

33A.38. This Part applies to an action of dissolution [F71 or declarator of nullity] of civil partnership or separation of civil partners.

Textual Amendments

F71 Words in Sch. 1 rule 33A.38 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(50)}

Applications in actions to which this Part applies S

33A.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 a section 11 order; and

(b) an order for aliment for a child.

Applications in depending actions by motion S

33A.40. 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.

Applications after decree relating to a section 11 order S

33A.41. (1) An application after final decree for, or for the variation or recall of, a section 11 order or 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.

Warrants for intimation to child and permission to seek views S

[F72 33A.41A. (1) Subject to paragraph (2), when lodging a minute under rule 14.3 (lodging of minutes) which includes a crave after final decree for, or the variation or recall of, a section 11 order in respect of a child who is not a party to the action, the minuter must—

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

(b) when lodging the minute, submit a draft Form F9, showing the details that the minuter proposes to include when the form is sent to the child.

(2) Where the minuter 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 minuter must include in the minute—

(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.

(3) The sheriff must be satisfied that the draft Form F9 submitted under paragraph (1)(b) has been drafted appropriately.

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

(5) 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 in accordance with rule 33A.41A(6);

(b) be signed by the sheriff.

(6) The Form F9 must be sent in accordance with—

(a) rule 33A.41B (views of the child – unopposed minutes relating to a section 11 order), where the minute is unopposed;

(b) rule 33A.41C (views of the child – craves relating to a section 11 order sought by minuter only), where the minute is opposed and a section 11 order is sought by the minuter only; or

(c) rule 33A.41D (views of the child – craves relating to a section 11 order sought by both minuter and respondent), where a section 11 order is sought by both the minuter and the respondent.

Textual Amendments

F72 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – unopposed minutes relating to a section 11 order S

33A.41B. (1) This rule applies to minutes which include a crave after final decree for, or the variation or recall of, a section 11 order in respect of which no notice of opposition or answers are lodged and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the minute.

(3) Except on cause shown, the sheriff must not determine the minute in the period of 28 days following the date on which the Form F9 was sent to the child.

Textual Amendments

F72 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – craves relating to a section 11 order sought by minuter only S

33A.41C. (1) This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and a crave for, or the variation or recall of, a section 11 order is sought by the minuter only and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) no later than 14 days after the notice of opposition or answers are lodged, send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views);

(b) on the same day, lodge a certificate of intimation in Form F9A;

(c) not send the child a copy of the minute, the notice of opposition or answers.

Textual Amendments

F72 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Views of the child – craves relating to a section 11 order sought by both minuter and respondent S

33A.41D. (1) This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and craves for, or the variation or recall of, a section 11 order are sought by both the minuter and the respondent and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

(2) The minuter must—

(a) no later than 14 days after the notice of opposition or answers are lodged, send the child the Form F9 that was submitted and approved under rule 33A.41A (warrants for intimation to child and permission to seek views), amended so as also to narrate the section 11 order sought by the respondent;

(b) on the same day—

(i) lodge a certificate of intimation in Form F9A;

(ii) send the respondent a copy of the Form F9 that was sent to the child;

(c) not send the child a copy of the minute, the notice of opposition or answers.]

Textual Amendments

F72 Sch. 1 rules 33A.41A-33A.41D inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(18) (with para. 4)

Applications after decree relating to aliment S

33A.42. (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 aliment S

33A.43. (1) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act 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.

PART V S ORDERS RELATING TO FINANCIAL PROVISIONS

Application and interpretation of this Part S

33A.44. (1) This Part applies to an action of dissolution [F73 or declarator of nullity] of civil partnership.

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

Textual Amendments

F73 Words in Sch. 1 rule 33A.44(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(51)}

Applications in actions to which this Part applies S

33A.45. (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 112 of the Act of 2004 (transfer of tenancy).

Applications in depending actions relating to incidental orders S

33A.46. (1) In an action depending before the sheriff to which this Part applies–

(a) the pursuer or defender, notwithstanding rules 33A.34(2) (application by defender for order for financial provision) and 33A.45(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 be 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 aliment S

33A.47. 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 provision S

33A.48. (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); F74 ...

[F75 (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.

(3) An application under–

(a) paragraph (5) of section 12A of the Act of 1985 F76 (recall or variation of order in respect of a pension lump sum);

(b) paragraph (7) of that section F77 (variation of order in respect of pension lump sum to substitute trustees or managers); F78 ...

[F79 (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,

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

Textual Amendments

F74 Word in Sch. 1 rule 33A.48(1)(a)(iv) omitted (28.11.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2011 (S.S.I. 2011/386), paras. 1(1), 2(3)(a) (with para. 10)

F75 Sch. 1 rule 33A.48(1)(a)(v) inserted (28.11.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2011 (S.S.I. 2011/386), paras. 1(1), 2(3)(b) (with para. 10)

F76 Section 12A(5) was inserted by the Pensions Act 1995 (c. 26), section 167(3) and amended by the Welfare Reform and Pensions Act 1999 (c. 30), section 84 and Schedule 12, Part 1, paragraph 9(1)(6).

F77 Section 12A(7) was inserted by the Pensions Act 1995 (c. 26), section 167(3) and amended by the Welfare Reform and Pensions Act 1999 (c. 30), section 84 and Schedule 12, Part 1, paragraph 9(1)(8).

F78 Word in Sch. 1 rule 33A.48(3)(b) omitted (6.4.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (S.S.I. 2011/193), paras. 1(2), 15(5)(a) (with para. 20)

F79 Sch. 1 rule 33A.48(3)(ba) inserted (6.4.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 (S.S.I. 2011/193), paras. 1(2), 15(5)(b) (with para. 20)

Pension Protection Fund notification S

[F80 33A.48A. (1) In this rule–

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

• “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.

(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

F80 Sch. 1 rule 33A.48A inserted (1.7.2008) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 (S.S.I. 2008/223), para. 3(3)

Applications after decree relating to agreements and avoidance transactions S

33A.49. 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 VI S APPLICATIONS RELATING TO AVOIDANCE TRANSACTIONS

Form of applications S

33A.50. (1) An application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions) by a party to a civil partnership 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 a civil partnership action shall be made by minute in the process of the action to which the application relates.

PART VII S FINANCIAL PROVISION AFTER OVERSEAS PROCEEDINGS

Interpretation of this Part S

33A.51. In this Part–

• “order for financial provision” has the meaning assigned in paragraph 4 of Schedule 11 to the Act of 2004;

• “overseas proceedings” has the meaning assigned in paragraph 1(1)(a) of Schedule 11 to the Act of 2004.

Applications for financial provision after overseas proceedings S

33A.52. (1) An application under paragraph 2(1) of Schedule 11 to the Act of 2004 for an order for financial provision after overseas proceedings shall be made by initial writ.

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

(a) section 112 of the Act of 2004 (transfer of tenancy of family home);

(b) paragraph 3(4) of Schedule 11 to the Act of 2004 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 of 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 it relates.

(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.

(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.

PART VIII S ACTIONS IN RESPECT OF ALIMENT

Applications relating to agreements on aliment S

33A.53. In a civil partnership 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.

PART IX S APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995

Application of this Part S

33A.54. This Part applies to an application for a section 11 order in a civil partnership action other than in an action of dissolution [F81 or declarator of nullity] of civil partnership or separation of civil partners.

Textual Amendments

F81 Words in Sch. 1 rule 33A.54 inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {para. 2(52)}

Form of applications S

33A.55. Subject to any other provision in this Chapter, an application for a section 11 order shall be made—

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

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

Applications relating to interim orders in depending actions S

33A.56. An application, in an action depending before the sheriff to which this Part applies, for, or for the variation or recall of, an 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.

Applications after decree S

33A.57. (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.

[F82 (3) Rules 33A.41A (warrants for intimation to child and permission to seek views) to 33A.41D (views of the child – craves relating to a section 11 order sought by both minuter and respondent) apply (with the necessary modifications) to the seeking of the child’s views in relation to a minute lodged in accordance with this rule.]

Textual Amendments

F82 Sch. 1 rule 33A.57(3) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(19) (with para. 4)

Application for leave S

[F83 33A.57A (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 of which leave is sought; and

(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, that notification of the application for legal aid 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

F83 Sch. 1 rule 33A.57A inserted (28.9.2009) by Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (S.S.I. 2009/284), {art. 3(5)}

PART X S ACTIONS RELATING TO OCCUPANCY RIGHTS AND TENANCIES

Application of this Part S

33A.58. This Part applies to an action or application for an order under Chapter 3 or Chapter 4 of Part 3 or section 127 of the Act of 2004.

Interpretation of this Part S

33A.59. Unless the context otherwise requires, words and expressions used in this Part which are also used in Chapter 3 or Chapter 4 of Part 3 of the Act of 2004 have the same meaning as in Chapter 3 or Chapter 4, as the case may be.

Form of application S

33A.60. (1) Subject to any other provision in this Chapter, an application for an order under this Part shall be made–

(a) by an action for such an order;

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

(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 107(1) (dispensation with civil partner's consent to dealing) or section 127 (application in relation to attachment) of the Act of 2004 shall, unless made in a depending civil partnership action, be made by summary application.

Defenders S

33A.61. The applicant for an order under this Part shall call as a defender–

(a) where he is seeking an order as a civil partner, the other civil partner; and

(b) where he is a third party making an application under section 107(1) (dispensation with civil partner's consent to dealing), or 108(1) (payment from non-entitled civil partner in respect of loan) of the Act of 2004, both civil partners.

Applications by motion S

33A.62. (1) An application under any of the following provisions of the Act of 2004 shall be made by motion in the process of the depending action to which the application relates:–

(a) section 103(4) (interim order for regulation of rights of occupancy, etc.);

(b) section 104(6) (interim order suspending occupancy rights);

(c) section 107(1) (dispensation with civil partner's consent to dealing); and

(d) F84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) to the other civil partner;

(b) where the motion is under paragraph (1)(a) or (b) and the entitled civil partner is a tenant or occupies the family 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 33A.7(1)(i) (warrant for intimation to certain persons in actions for orders under Chapter 3 of Part 3 of the Act of 2004) or rule 33A.15 (order for intimation by sheriff).

Textual Amendments

F84 Sch. 1 rule 33A.62(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(53)}

Applications by minute S

33A.63. (1) An application for an order under section 105 of the Act of 2004 (variation and recall of orders made under section 103 or section 104 of the Act of 2004) shall be made by minute.

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

(a) to the other civil partner;

(b) where the entitled civil partner is a tenant or occupies the family 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 33A.7(1)(i) (warrant for intimation to certain persons in actions for orders under Chapter 3 of Part 3 of the Act of 2004) or rule 33A.15 (order for intimation by sheriff).

Sist of actions to enforce occupancy rights S

33A.64. Unless the sheriff otherwise directs, the sist of an action by virtue of section 107(4) of the Act of 2004 (where action raised by non entitled civil partner 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 civil partner.

Certificates of delivery of documents to chief constable S

33A.65. F85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F85 Sch. 1 rule 33A.65 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(54)}

PART XI S SIMPLIFIED DISSOLUTION OF CIVIL PARTNERSHIP APPLICATIONS

Application and interpretation of this Part S

33A.66. (1) This Part applies to an application for dissolution of civil partnership by a party to a civil partnership made in the manner prescribed in rule 33A.67 (form of applications) if, but only if–

(a) that party relies on the facts set out in section 117(3)(c) (no cohabitation for [F86 one year] with consent of defender to decree), section 117(3)(d) (no cohabitation for [F87 two] years), or section 117(2)(b) (issue of interim gender recognition certificate) of the Act of 2004;

(b) in an application under section 117(3)(c) of the Act of 2004, the other party consents to decree of dissolution of civil partnership being granted;

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

(d) there is no child of the family (as defined [F88 in section 12(4)(b) of the Act of 1995]) under the age of 16 years;

(e) neither party to the civil partnership applies for an order for financial provision on dissolution of civil partnership; and

(f) neither party to the civil partnership suffers from mental disorder.

(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 dissolution of civil partnership application” means an application mentioned in paragraph (1).

Textual Amendments

F86 Words in Sch. 1 rule 33A.66(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), para. 2(55)(a)

F87 Word in Sch. 1 rule 33A.66(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), para. 2(55)(b)

F88 Words in Sch. 1 rule 33A.66(1)(d) substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 9(2) (with para. 15)

Form of applications S

33A.67. (1) A simplified dissolution of civil partnership application in which the facts set out in section 117(3)(c) of the Act of 2004 (no cohabitation for [F89 one year] with consent of defender to decree) are relied on shall be made in Form CP29 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 CP29 is signed by the party to the civil partnership giving consent.

(2) A simplified dissolution of civil partnership application in which the facts set out in section 117(3)(d) of the Act of 2004 (no cohabitation for [F90 two] years) are relied on shall be made in Form CP30 and shall only be of effect if it is signed by the applicant.

(3) A simplified dissolution of civil partnership application in which the facts set out in section 117(2)(b) of the Act of 2004 (issue of interim gender recognition certificate) are relied on shall be made in Form CP31 and shall only be of effect if it is signed by the applicant.

Textual Amendments

F89 Words in Sch. 1 rule 33A.67(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(56)(a)}

F90 Word in Sch. 1 rule 33A.67(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(56)(b)}

Lodging of applications S

33A.68. The applicant shall send a simplified dissolution of civil partnership application to the sheriff clerk with–

(a) an extract or certified copy of the civil partnership certificate;

(b) the appropriate fee; and

(c) in an application under section 117(2)(b) of the Act of 2004, the interim gender recognition certificate or a certified copy, within the meaning of rule 33A.9(4).

Citation and intimation S

33A.69. (1) This rule is subject to rule 33A.70 (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 dissolution of civil partnership application.

(3) The form of citation–

(a) in an application relying on the facts in section 117(3)(c) of the Act of 2004 shall be in Form CP32;

(b) in an application relying on the facts in section 117(3)(d) of the Act of 2004 shall be in Form CP33; and

(c) in an application relying on the facts in section 117(2)(b) of the Act of 2004 shall be in Form CP34.

(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) [F91 to (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).

(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 dissolution of civil partnership application.

Textual Amendments

F91 Words in Sch. 1 rule 33A.69(4)(b) substituted (29.7.2010) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (S.S.I. 2010/279), paras. 1(2), 3

Citation where address not known S

33A.70. (1) In a simplified dissolution of civil partnership application in which the facts in section 117(3)(d) (no cohabitation for [F92 two] years) or section 117(2)(b) (issue of interim gender recognition certificate) of the Act of 2004 are relied on and the address of the other party to the civil partnership 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 CP35 on the walls of court on a period of notice of 21 days; and

(b) intimation shall be made to–

(i) every person who was a child of the family (within the meaning [F93 of section 12(4)(b) of the Act of 1995]) who has reached the age of 16 years, and

(ii) one of the next of kin of the other party to the civil partnership 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 CP36.

Textual Amendments

F92 Word in Sch. 1 rule 33A.70(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), para. 2(57)

F93 Words in Sch. 1 rule 33A.70(1)(b)(i) substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 9(3) (with para. 15)

Opposition to applications S

33A.71. (1) Any person on whom service or intimation of a simplified dissolution of civil partnership 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 dissolution of civil partnership and giving the reasons for his opposition to the application.

(2) Where opposition to a simplified dissolution of civil partnership 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.

Evidence S

33A.72. Parole evidence shall not be given in a simplified dissolution of civil partnership application.

Decree S

33A.73. (1) The sheriff may grant decree in terms of the simplified dissolution of civil partnership 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 Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters dated 15 November 1965 F94 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 civil partnership an extract of the decree of dissolution of civil partnership in Form CP37.

Textual Amendments

F94 Cmnd. 3986 (1969).

Appeals S

33A.74. [F95 (1)] Any appeal against an interlocutor granting decree of dissolution of civil partnership under rule 33A.73 (decree) may be made, within 14 days after the date of decree, by sending a letter to the court giving reasons for the appeal.

[F96 (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 dissolution of civil partnership 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

F95 Sch. 1 rule 33A.74 renumbered as Sch. 1 rule 33A.74(1) (1.1.2016) by Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015 (S.S.I. 2015/419), paras. 1(2), 5(13)(a) (with para. 20)

F96 Sch. 1 rule 33A.74(2)(3) inserted (1.1.2016) by Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015 (S.S.I. 2015/419), paras. 1(2), 5(13)(b) (with para. 20)

Applications after decree S

33A.75. Any application to the court after decree of dissolution of civil partnership has been granted in a simplified dissolution of civil partnership application which could have been made if it had been made in an action of dissolution of civil partnership shall be made by minute.

F97 PART XII S REFERRALS TO PRINCIPAL REPORTER

Textual Amendments

F97 Sch. 1 Ch. 33A Pt. 12 revoked (24.6.2013) by Act of Sederunt (Children’s Hearings (Scotland) Act 2011) (Miscellaneous Amendments) 2013 (S.S.I. 2013/172), paras. 1(1), 5(3)(b) (with para. 8)

F97 33A.76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97 33A.77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97 33A.78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART XIII S SISTING OF CIVIL PARTNERSHIP ACTIONS

Application and interpretation of this Part S

33A.79. (1) This Part applies to any action for–

• dissolution of civil partnership;

• separation of civil partners.

(2) In this Part–

• “another jurisdiction” means any country outside Scotland.

• “related jurisdiction” means any of the following countries, namely, England and Wales, Northern Ireland, Jersey, Guernsey and the Isle of Man (the reference to Guernsey being treated as including Alderney and Sark).

(3) For the purposes of this Part–

(a) neither the taking of evidence on commission nor a separate proof relating to any preliminary plea shall be regarded as part of the proof in the action; and

(b) an action is continuing if it is pending and not sisted.

(4) Any reference in this Part to proceedings in another jurisdiction is to proceedings in a court or before an administrative authority of that jurisdiction.

Duty to furnish particulars of concurrent proceedings S

33A.80. While any action to which this Part applies is pending in a sheriff court and proof in that action has not begun, it shall be the duty of the pursuer, and of any other person who has entered appearance in the action, to furnish, in such manner and to such persons and on such occasions as may be prescribed, such particulars as may be so prescribed of any proceedings which–

(a) he knows to be continuing in another jurisdiction; and

(b) are in respect of that civil partnership or capable of affecting its validity.

Mandatory sists S

33A.81. Where before the beginning of the proof in any action for dissolution of civil partnership it appears to the sheriff on the application of a party to the civil partnership–

(a) that in respect of the same civil partnership proceedings for dissolution or nullity of civil partnership are continuing in a related jurisdiction; and

(b) that the parties to the civil partnership have resided together after the civil partnership was formed or treated as having been formed within the meaning of section 1(1) of the Act of 2004; and

(c) that the place where they resided together when the action was begun or, if they did not then reside together, where they last resided together before the date on which that action was begun is in that jurisdiction; and

(d) that either of the said parties was habitually resident in that jurisdiction throughout the year ending with the date on which they last resided together before the date on which that action was begun;

it shall be the duty of the sheriff, subject to rule 33A.83(2) below, to sist the action before him.

Discretionary sists S

33A.82. (1) Where before the beginning of the proof in any action to which this Part applies, it appears to the sheriff–

(a) that any other proceedings in respect of the civil partnership in question or capable of affecting its validity are continuing in another jurisdiction, and

(b) that the balance of fairness (including convenience) as between the parties to the civil partnership is such that it is appropriate for those other proceedings to be disposed of before further steps are taken in the action,

the sheriff may then if he thinks fit sist that action.

(2) In considering the balance of fairness and convenience for the purposes of paragraph (1)(b), the sheriff shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted, or not being sisted.

(3) Paragraph (1) is without prejudice to the duty imposed by rule 33A.81 above.

(4) If, at any time after the beginning of the proof in any action to which this Part applies, the sheriff is satisfied that a person has failed to perform the duty imposed on him in respect of the action and any such other proceedings as aforesaid by rule 33A.80, paragraph (1) shall have effect in relation to that action and to the other proceedings as if the words “before the beginning of the proof” were omitted; but no action in respect of the failure of a person to perform such a duty shall be competent.

Recall of sists S

33A.83. (1) Where an action is sisted in pursuance of rule 33A.81 or 33A.82, the sheriff may if he thinks fit, on the application of a party to the action, recall the sist if it appears to him that the other proceedings by reference to which the action was sisted are sisted or concluded or that a party to those other proceedings has delayed unreasonably in prosecuting those other proceedings.

(2) Where an action has been sisted in pursuance of rule 33A.82 by reference to some other proceedings, and the sheriff recalls the sist in pursuance of the preceding paragraph, the sheriff shall not again sist the action in pursuance of the said rule 33A.82.

Orders in sisted actions S

33A.84. (1) The provisions of paragraphs (2) and (3) shall apply where an action to which this Part applies is sisted by reference to proceedings in a related jurisdiction for any of those remedies; and in this rule–

• “the other proceedings”, in relation to any sisted action, means the proceedings in another jurisdiction by reference to which the action was sisted;

• “relevant order” means an interim order relating to aliment or children; and

• “sisted” means sisted in pursuance of this Part.

(2) Where an action such as is mentioned in paragraph (1) is sisted, then, without prejudice to the effect of the sist apart from this paragraph—

(a) the sheriff shall not have power to make a relevant order in connection with the sisted action except in pursuance of sub paragraph (c); and

(b) subject to the said sub paragraph (c), any relevant order made in connection with the sisted action shall (unless the sist or the relevant order has been previously recalled) cease to have effect on the expiration of the period of three months beginning with the date on which the sist comes into operation; but

(c) if the sheriff considers that as a matter of necessity and urgency it is necessary during or after that period to make a relevant order in connection with the sisted action or to extend or further extend the duration of a relevant order made in connection with the sisted action, the sheriff may do so, and the order shall not cease to have effect by virtue of sub paragraph (b).

(3) Where any action such as is mentioned in paragraph (1) is sisted and at the time when the sist comes into operation, an order is in force, or at a subsequent time an order comes into force, being an order made in connection with the other proceedings and providing for any of the following matters, namely periodical payments for a party to the civil partnership in question, periodical payments for a child, the arrangements to be made as to with whom a child is to live, contact with a child, and any other matter relating to parental responsibilities or parental rights, then, as from the time when the sist comes into operation (in a case where the order is in force at that time) or (in any other case) on the coming into force of the order–

(a) any relevant order made in connection with the sisted action shall cease to have effect in so far as it makes for a civil partner or child any provision for any of the said matters as respects which the same or different provision for that civil partner or child is made by the other order; and

(b) the sheriff shall not have power in connection with the sisted action to make a relevant order containing for a civil partner or child provision for any of the matters aforesaid as respects which any provision for that civil partner or child is made by the other order.

(4) Nothing in this paragraph affects any power of a sheriff–

(a) to vary or recall a relevant order in so far as the order is for the time being in force; or

(b) to enforce a relevant order as respects any period when it is or was in force; or

(c) to make a relevant order in connection with an action which was, but is no longer, sisted.