Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 No. 207

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Statutory Instruments of the Scottish Parliament

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SCOTTISH STATUTORY INSTRUMENTS

2006 No. 207
SHERIFF COURT
Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006

	Made	12th April 2006
	Coming into force	4th May 2006

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971[1] and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation and commencement
     1. —(1) This Act of Sederunt may be cited as the Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 and shall come into force on 4th May 2006.

    (2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Amendment of the Ordinary Cause Rules
     2. —(1) The Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907[2] shall be amended in accordance with the following sub-paragraphs.

    (2) In rule 3.3(1) (warrants of citation) after sub-paragraph (d) there shall be inserted the following:–

(3) In rule 5.1(2) (signature of warrants)–

(4) After rule 5.2(1)(a) (form of citation and certificate) there shall be inserted the following:–

(5) In rule 8.1(1) (reponing)–

(6) In rule 9.1(1) (notice of intention to defend)[4], after "action)" there shall be inserted ", 33A.34 (notice of intention to defend and defences in civil partnership action)[5]".

(7) In rule 9.2 (fixing date for options hearing)–

    (8) In rule 9.6(3) (defences)[8], after "rule 33.1(1))" there shall be inserted "or a civil partnership action (within the meaning of rule 33A.1(1))".

    (9) In rule 9.12(7) (options hearing), for "and 33.37 (decree by default in family action)" there shall be substituted ", 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action)[9]".

    (10) In rule 12.2(3) (further provisions in relation to interlocutors)[10], after "rule 33.1(1)" there shall be inserted "or a civil partnership action within the meaning of rule 33A.1(1)".

    (11) In rule 16.1 (application of Chapter 16: decrees by default), after paragraph (a) there shall be inserted the following:–

(12) In rule 17.1 (application of Chapter 17), after paragraph (a) there shall be inserted—

(13) In rule 19.1(1) (counterclaims), after "rule 33.1(1)" there shall be inserted, ", a civil partnership action within the meaning of rule 33A.1(1)".

(14) In rule 33.1(interpretation of Chapter 33: family actions)–

(b) in paragraph (2), for the definition of "mental disorder" there shall be substituted—

(15) In rule 33.2 (averments in actions of divorce or separation about other proceedings)–

(16) In rule 33.3(1)(a) (averments where section 11 order sought), for "or separation" there shall be substituted ", separation or declarator of nullity of marriage".

(17) In rule 33.7 (warrants and forms for intimation)–

(c) in paragraph (1)(e), for "or separation" there shall be substituted ", separation or declarator of nullity of marriage"; and

(d) in paragraph (5), for "or (l)" there shall be substituted ", (l) or (m)".

(18) In rule 33.8 (intimation where improper association)–

    (19) In rule 33.9(a) (productions in action of divorce or where section 11 order may be made), after "divorce" there shall be inserted "or declarator of nullity of marriage".

    (20) In rule 33.12(2)(b) (execution of service on, or intimation to, local authority), for "motion" there shall be substituted "crave".

    (21) In rule 33.14(1) (notices in certain actions of divorce or separation)–

(22) In rule 33.16 (appointment of curators ad litem to defenders)–

    (23) In rule 33.18(1) (notices of consent to divorce or separation), for "two years" there shall be substituted "one year";

    (24) In rule 33.25(c)(ii) (intimation to local authority before supervised contact order), "to" where it second occurs shall be omitted.

    (25) For rule 33.27A[15] there shall be substituted—

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

33.27A.

An application under section 3A(1)[

    (26) In rule 33.30 (extracts of undefended decree), for "pursuers" there shall be substituted "pursuer".

    (27) In rule 33.37(2), after "(h)" there shall be inserted ", (n) or (o)".

    (28) In rule 33.38 (application and interpretation of Part IV of Chapter 33: applications and orders relating to children in certain family actions), for "or separation" there shall be substituted ", separation or declarator of nullity of marriage".

    (29) In rule 33.59(1) (applications relating to agreement on aliment), after "paragraph (2)" there shall be inserted "and rule 33A.53".

    (30) In rule 33.60 (application of Part IX of Chapter 33: applications for orders under section 11 of the Children (Scotland) Act 1995), for "or separation" there shall be substituted ", separation or declarator of nullity of marriage".

    (31) In rule 33.63 (applications relating to interim orders in depending family actions), "an order for" shall be omitted.

    (32) In rule 33.68 (defenders)–

    (33) In rule 33.69(1) (applications by motion), sub-paragraph (d) shall be omitted.

    (34) In rule 33.70(1) (applications by minute), sub-paragraph (b) shall be omitted.

    (35) Rule 33.72 (certificates of delivery of documents to chief constable)[18] shall be omitted.

    (36) In rule 33.73(1) (application and interpretation of Part XI: simplified divorce applications)–

(b) in sub-paragraph (e) "and" shall be omitted; and

(c) after sub-paragraph (f) there shall be inserted the following:–

(37) In rule 33.74 (form of simplified divorce applications)–

(38) In rule 33.75 (lodging of applications)–

(39) In rule 33.76(3) (citation and intimation)–

(40) In rule 33.77(1) (citation where address not known)–

(41) In rule 33A.1(1) (interpretation of Chapter 33A: civil partnership actions)[21], after sub-paragraph (e), there shall be inserted the following:–

(42) In rule 33A.2 (averments in actions of dissolution of civil partnership or separation of civil partners)–

    (43) In rule 33A.3(1)(a) (averments where section 11 order sought), after "dissolution" there shall be inserted "or declarator of nullity".

    (44) In rule 33A.7(1)(c) (warrants and forms for intimation), after "dissolution" there shall be inserted "or declarator of nullity".

    (45) In rule 33A.9(2) (productions in action of dissolution of civil partnership or where section 11 order may be made), after "dissolution" there shall be inserted "or declarator of nullity".

    (46) In rule 33A.14(1) (notices in certain actions of dissolution of civil partnership or separation of civil partners)–

(47) In rule 33A.16 (appointment of curators ad litem to defenders)–

    (48) In rule 33A.18(1) (notices of consent to dissolution of civil partnership or separation of civil partners), for "two years" there shall be substituted "one year".

    (49) In rule 33A.37(2)(a) (decree by default), for "or (b)" there shall be substituted "(b) or (f)".

    (50) In rule 33A.38 (application and interpretation of Part IV of Chapter 33A: applications and orders relating to children in civil partnership actions), after "dissolution" there shall be inserted "or declarator of nullity".

    (51) In rule 33A.44(1) (application and interpretation of Part V of Chapter 33A: orders relating to financial provision in civil partnership actions), after "dissolution" there shall be inserted "or declarator of nullity".

    (52) In rule 33A.54 (application of Part IX of Chapter 33A: applications for orders under section 11 of the Children (Scotland) Act 1995 in civil partnership actions), after "dissolution" there shall be inserted "or declarator of nullity".

    (53) In rule 33A.62(1) (applications by motion), sub-paragraph (d) shall be omitted.

    (54) Rule 33A.65 (certificates of delivery of documents to chief constable) shall be omitted.

    (55) In rule 33A.66(1)(a) (application and interpretation of Part XI of Chapter 33A: simplified dissolution of civil partnership applications)–

(56) In rule 33A.67 (form of applications) the following:–

(57) In rule 33A.70(1) (citation where address not known), for "five" there shall be substituted "two".

(58) After Chapter 33A (civil partnership actions) there shall be inserted—

" CHAPTER 33B

FINANCIAL PROVISION FOR FORMER COHABITANTS

Interpretation of this Chapter

33B.

In this Chapter—

"the Act" means the Family Law (Scotland) Act 2006[

"cohabitant" has the meaning given in section 25 of the Act;

"the deceased" means the cohabitant referred to in section 29(1)(a) of the Act;

"net intestate estate" has the meaning given in section 29(10) of the Act;

"the survivor" means the cohabitant referred to in section 29(1)(b) of the Act.

33B. —(1) An application under—

(a) section 28(2) of the Act for an order for financial provision where cohabitation ends otherwise than by death; or

(b) section 29(2) of the Act for an order for financial provision by the survivor on intestacy,

shall be made by initial writ.

(2) In an initial writ under paragraph (1)(b) the pursuer shall—

(a) name the deceased's executor as the defender; and

(b) include a crave for a warrant for intimation to any person having an interest in the deceased's net intestate estate, and a notice of intimation in Form CO1 shall be attached to the initial writ intimated to any such person.

(3) Where the identity or address of any person referred to in paragraph (2)(b) is not known and cannot be ascertained, the pursuer shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to identify the identity or address, as the case may be, of that person.

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

(59) In rule 41.2 (attachment of power of arrest to interdict)[23], after "section 1(2)" there shall be inserted "or (1A)[24]".

(60) Appendix 1 shall be amended as follows:–

(iii) in paragraph 3, for "five" there shall be substituted "two";

(d) in Form F24—

(iii) in paragraph 3, for "five" there shall be substituted "two";

(e) after Form F24 there shall be inserted the Form F24A set out in the Schedule to this Act of Sederunt;

(f) Form F30 shall be omitted;

(g) in Form F31—

(iv) in Part C of paragraph 3 of Part 1, after sub-paragraph (ii) there shall be inserted—

(iii) I lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and have no known residence in Scotland at that date □

(iv) My spouse lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and has no known residence in Scotland at that date" □

(v) in paragraph 5 of Part 1, for "2 years" there shall be substituted "1 year";

(vi) in paragraph 8 of Part 1, for the words from "Is" to "handicap?)" there shall be substituted "Does your spouse have any mental disorder (whether mental illness, personality disorder or learning disability)? (if yes, give details)";

(vii) after paragraph 10 of Part 1 there shall be inserted the following:–

if yes, give details

(h) in Form F33—

(iv) in Part C of paragraph 5 of Part 1, after sub-paragraph (ii) there shall be inserted—

(iii) I lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and have no known residence in Scotland at that date □

(iv) My spouse lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and has no known residence in Scotland at that date" □

(v) in paragraph 7(i) of Part 1 for "5" there shall be substituted "2";

(vi) in paragraph 9 of Part 1, for the words from "Is" until "handicap?)" there shall be substituted "Does your spouse have any mental disorder (whether mental illness, personality disorder or learning disability)? (if yes, give details)";

(vii) after paragraph 11 there shall be inserted the following:–

11A.

if yes, give details

(i) after Form F33 there shall be inserted the Form F33A set out in the Schedule to this Act of Sederunt;

(j) in Form F34—

(k) in Form F35—

(l) after Form F35 there shall be inserted the Form F35A set out in the Schedule to this Act of Sederunt;

(m) in paragraph 1(a) of Form CP20, for "two years" there shall be substituted "one year";

(n) in paragraph 1(a) of Form CP22, for "two years" there shall be substituted "one year";

(o) in Form CP24—

(p) in Form CP25—

(q) after Form CP25 there shall be inserted the Form CP25A set out in the Schedule to this Act of Sederunt;

(r) Form CP28 shall be omitted;

(s) in Form CP29—

(t) in Form CP30—

(u) in Form CP31—

(v) in Form CP32—

(w) in Form CP33—

(x) after Form CP37 there shall be inserted the Form CO1 set out in the Schedule to this Act of Sederunt.

BRIAN GILL

Lord Justice Clerk, I.P.D.
Edinburgh
12th April 2006

SCHEDULERule 2(60)

Click here to view Form F24A

Click here to view Form F33A

Click here to view Form F33A continued

Click here to view Form F33A continued

Click here to view Form F33A continued

Click here to view Form F33A continued

Click here to view Form F33A continued

Click here to view Form F35A

Click here to view Form CP25A

Click here to view Form CO1

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends Chapters 33 and 33A of the Ordinary Cause Rules in relation to family actions and civil partnership actions in consequence of the provisions of the Family Law (Scotland) Act 2006. In particular, provision is made to extend the application of the rules to actions of declarator of marriage and declarator of nullity of marriage which may now be brought in the sheriff court. Consequential amendments are also made in respect of the reduction in the separation periods for divorce. A new Chapter 33B is inserted into the rules to make provision for applications under sections 28 and 29 of the Family Law (Scotland) Act 2006 in relation to orders for financial provision where cohabitation ends otherwise than by death and on intestacy. Additionally, various minor amendments are made to Chapters 33 and 33A.

Consequential and miscellaneous amendments are also made to the forms set out in the Schedule to the rules.

Notes:

[1] 1971 c.58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c.32), section 2(4), the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp17), section 43 and was extended by the Child Support Act 1991 (c.48), sections 39(2) and 49 and the Vulnerable Witnesses (Scotland) Act 2004 (asp3), section 14(2).back

[2] 1907 c.51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445, S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 560, 2003/25 and 26, 2004/197 and 350 and 2005/20, 189, 638 and 648.back

[3] Rule 33A.1 was inserted by S.S.I. 2005/638.back

[4] Rule 9.1(1) was amended by S.I. 1996/2167.back

[5] Rule 33A.34 was inserted by S.S.I. 2005/638.back

[6] Rule 9.2(1A) was inserted by S.S.I. 2000/239.back

[7] Rule 9.2(1B) was inserted by S.S.I. 2000/239.back

[8] Rule 9.6(3) was inserted by S.I. 1996/2167.back

[9] Rule 33A.37 was inserted by S.S.I. 2005/638.back

[10] Rule 12.2(3) was substituted by S.I. 1996/2445.back

[11] 2003 asp13.back

[12] Rule 33.2(2) was amended by S.S.I. 2001/144.back

[13] O.J. No. L 338, 23.12.2003, p.1.back

[14] 2000 asp4.back

[15] Rule 33.27A was inserted by S.S.I. 2001/144 and was amended by S.S.I. 2005/648.back

[16] Section 3A was inserted by section 15 of the Family Law (Scotland) Act 2006 (asp2).back

[17] Section 18A was inserted by section 31 of the Family Law (Scotland) Act 2006 (asp2).back

[18] Rule 33.72 was amended by S.I. 1996/2445.back

[19] Section 1(1)(b) was inserted by paragraph 6 of Schedule 2 to the Gender Recognition Act 2004 (c.7).back

[20] Rule 33.9A was inserted by S.S.I. 2005/189.back

[21] Chapter 33A was inserted by S.S.I. 2005/638.back

[22] 2006 asp2.back

[23] Rule 41.2 was inserted by S.S.I. 2003/26.back

[24] Section 1(1A) was inserted by the Family Law (Scotland) Act 2006 (asp2).back

ISBN 0 11 070272 7

Prepared 28 April 2006

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	Statutory Instruments of the Scottish Parliament
You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 No. 207 URL: http://www.bailii.org/scot/legis/num_reg/2006/20060207.html

(iii)	I lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and have no known residence in Scotland at that date	□
(iv)	My spouse lived at the address shown above for a period of at least 40 days ending not more than 40 days before the date I signed this application and has no known residence in Scotland at that date"	□