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Act of Sederunt (Rules of the Court of Session 1994) 1994

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

Department King's Printer of Acts of Parliament

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(1) Defences in a commercial action shall be in the form of answers to the summons with any additional statement of facts or legal grounds on which it is intended to rely.

(2) There shall be appended to the defences in a commercial action a schedule listing the documents founded on or adopted as incorporated in the defences , which should also be lodged as an inventory of productions.

Transfer of action to procedure in this Chapter

47.7

(1) In an action in which the pursuer has not elected to adopt the procedure in this Chapter, any party may apply by motion at any time to have the action appointed to be a commercial action.

(2) A motion enrolled under paragraph (1) shall be heard by a commercial judge.

(3) An interlocutor appointing or refusing to appoint an action to be a commercial action shall be final and not subject to review.

Inspection and recovery of documents in commercial actions

47.8

(1) All proceedings in an action in which an election has been made under rule 47.3(1) or which has been transferred under rule 47.10 shall, in the Outer House, be heard and determined on the Commercial Roll on such dates and at such times as shall be fixed by the commercial judge.

(2) A commercial action shall call on the Commercial Roll for a preliminary hearing within 14 days after defences have been lodged.

(3) The appearance of a commercial action on the Commercial Roll for a hearing on a specified date shall not affect the right of any party to apply by motion at any time under these Rules.

Exchange of lists of witnesses in commercial actions

47.9

(1) At any time before or at the preliminary hearing, the commercial judge shall—

(a) on the motion of a party, withdraw a commercial action from the procedure in this Chapter and appoint it to proceed as an ordinary action where, having regard to—

(i) the likely need for detailed pleadings to enable justice to be done between the parties,

(ii) the length of time required for preparation of the action, or

(iii) any other relevant circumstances,

he is satisfied that the speedy and efficient determination of the action would not be served by the cause being dealt with as a commercial action; and

(b) on the motion of a party with the consent of all other parties, withdraw a commercial action from the Commercial Roll and appoint it to proceed as an ordinary action.

(1A) At any time before or at the preliminary hearing the commercial judge may, on the motion of a party, if he is satisfied that the action is not a commercial action, withdraw it from the Commercial Roll and appoint it to proceed as an ordinary action.

(2) If a motion to withdraw a commercial action from the Commercial Roll made before or renewed at a preliminary hearing is refused, no subsequent motion to withdraw the action from the Commercial Roll shall be considered except on special cause shown.

(3) At any time the commercial judge may, at his own instance, after hearing the parties to the action, if he is satisfied that it is not appropriate for the action to remain on the Commercial Roll, withdraw it from the Commercial Roll and appoint it to proceed as an ordinary action.

Evidence generally in commercial actions

47.10

(1) In an action within the meaning of rule 47.1(2) (definition of commercial action) in which the pursuer has not made an election under rule 47.3(1), any party may apply by motion at any time to have the action appointed to be a commercial action on the Commercial Roll.

(2) A motion enrolled under paragraph (1) shall be heard by the commercial judge on such a date and at such a time as the Keeper of the Rolls shall fix in consultation with the commercial judge.

(3) Where an interlocutor is pronounced under paragraph (1) appointing an action to be a commercial action on the Commercial Roll, the action shall immediately proceed to a preliminary hearing.

Customs of trade

47.11

(1) Unless a commercial action is withdrawn under rule 47.9 from the Commercial Roll then, at the preliminary hearing of a commercial action in which an election has been made under rule 47.3(1), the commercial judge—

(a) shall determine whether and to what extent and in what manner further specification of the claim and defences should be provided;

(b) may make an order in respect of any of the following matters:—

(i) detailed written pleadings to be made by a party either generally or restricted to particular issues;

(ii) a statement of facts to be made by one or more parties either generally or restricted to particular issues;

(iii) the allowing of an amendment by a party to his pleadings;

(iv) disclosure of the identity of witnesses and the existence and nature of documents relating to the action or authority to recover documents either generally or specifically;

(v) documents constituting, evidencing or relating to the subject-matter of the action or any invoices, correspondence or similar documents relating to it to be lodged in process within a specified period;

(vi) each party to lodge in process, and sent to every other party, a list of witnesses;

(vii) reports of skilled persons or witness statements to be lodged in process;

(viii) affidavits concerned with any of the issues in the action to be lodged in process; and

(ix) the action to proceed to a hearing without any further preliminary procedure either in relation to the whole or any particular aspect of the action;

(d) may continue the preliminary hearing to a date to be appointed by him; and

(e) may make such other order as he thinks fit for the speedy determination of the action.

(2) Where the commercial judge makes an order under paragraph (1)(b)(i) or (ii) or (c), he may ordain the pursuer to—

(a) make up a record; and

(b) lodge that record in process within such period as the commercial judge thinks fit.

(3) At the conclusion of the preliminary hearing, the court shall, unless it has made an order under paragraph (1)(b)(ix) (order to proceed without a further hearing), fix a date for a procedural hearing to determine further procedure.

(4) The date fixed under paragraph (3) for a procedural hearing may be extended on cause shown by application to the court, by motion, not less than two days prior to the date fixed for the procedural hearing.

CHAPTER 48 — EXCHEQUER CAUSES

Proceedings before Lord Ordinary in Exchequer Causes

48.1

(1) Subject to Part IV of Chapter 41 (Exchequer appeals), all proceedings in an Exchequer cause shall be brought before the Lord Ordinary in Exchequer Causes.

(2) An application for the suspension of a decree, charge, threatened charge or diligence in an Exchequer cause shall be made to the Lord Ordinary in Exchequer Causes.

(3) Where another judge of the court acts in place of the Lord Ordinary in Exchequer Causes, any interlocutor pronounced by him shall state that he acted in the absence of the Lor d Ordinary in Exchequer Causes.

Procedure in Exchequer causes

48.2

An Exchequer cause commenced by summons shall proceed as an ordinary action.

Precedence of extracts

48.3

The Extractor shall give priority to extracts in Exchequer causes over all other business.

CHAPTER 49 — FAMILY ACTIONS

Interpretation of this Chapter

49.1

(1) In this Chapter, “family action” means–

(a) an action of divorce;

(b) an action of dissolution of a civil partnership;

(d) an action of declarator of nullity of marriage or civil partnership;

(e) an action of declarator of marriage;

(f) an action of declarator of legitimacy;

(g) an action of declarator of illegitimacy;

(h) an action of declarator of parentage;

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

(j) an action of declarator of legitimation;

(k) an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.) except a petition for the appointment of a judicial factor;

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

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

(n) an action or application for financial provision after a dissolution or annulment of a civil partnership in an overseas country within the meaning of section 125 of and Schedule 11 to the Civil Partnership Act 2004;

(o) an action or application for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(p) an action or application for an order under Chapter 3 or 4 of Part 3 of the Civil Partnership Act 2004.

(q) an application under section 28 or 29 of the Family Law (Scotland) Act 2006 (financial provision for former co—habitants).

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

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

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

“the Act of 1975” means the Children Act 1975;

“the Act of 1976” means the Divorce (Scotland) Act 1976;

“the Act of 1973” means the Domicile and Matrimonial Proceedings Act 1973;

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

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

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

“the Act of 2004” means the Gender Recognition Act 2004;

“the CP Act of 2004” means the Civil Partnership Act 2004;

“civil partnership” has the same meaning as in section 1(1) of the CP Act of 2004;

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

“corrected gender recognition certificate” means a certificate issued under section 6(4) of the Act of 2004;

“dissolution of a civil partnership” means a decree granted under section 117(2) of the CP Act of 2004;

“full gender recognition certificate” and “interim gender recognition certificate” have the same meanings as in section 25 of the Act of 2004;

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

“incapable” means incapable, by reason of mental disorder, of—acting;making decisions;communicating decisions;understanding decisions; orretaining 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);

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

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

“action for declarator of nullity of a civil partnership” means an action for declarator that a civil partnership is void within the meaning of section 123 of the CP Act of 2004;

“order for financial provision” means, except in Parts VII and VIIA of this Chapter (financial provision after overseas divorce, dissolution of a civil partnership, or annulment of marriage or civil partnership), an order mentioned in section 8(1) of the Act of 1985;

“parental responsibilities” has the same meaning as in section 1(3) of the Act of 1995;

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

“residence order” has the same meaning as in section 11(2) of the Act of 1995;

“section 11 order” means an order under section 11 of the Act of 1995;

“action of separation of civil partners” means an action for decree under section 120 of the CP Act of 2004.

(3) For the purposes of rule 49.2 (averments in certain family actions about other proceedings) and rule 49.3 (averments where section 11 order sought), and in relation to proceedings in another jurisdiction, Schedule 3 to the Act of 1973 (sisting of consistorial actions in Scotland) and rule 49.18A (applications for sist in actions involving civil partnerships), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Averments in certain family actions about other proceedings

49.2

(1) This rule applies to an action of divorce, separation, declarator of marriage ... declarator of nullity of marriage dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership.

(2) In an action to which this rule applies, the pursuer shall state in the condescendence of the summons–

(a) whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage or civil partnership to which the summons 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 in the Court of Session should be sisted under Schedule 3 to the Act of 1973, or rule 49.18A.

(3) Where–

(a) such proceedings are continuing;

(b) the action in the Court of Session is defended; and

(i) the summons does not contain the statement referred to in paragraph (2)(b), or

(ii) the particulars mentioned in paragraph (2)(b) as set out in the summons 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).

Averments where custody sought

49.3

(1) A party to a family 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 divorce, separation ... declarator of nullity of marriage , dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership, 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 family action–

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

(ii) averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the marriage or civil partnership of the parents or either of the parents of that 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 person to the family action shall include such particulars or such further or correct particulars as are known to him.

(3) In paragraph (1)(b)(ii), “child” includes a child of the family within the meaning assigned in section 42(4) of the Family Law Act 1986[^f00096].

Averments where identity or address of person not known

49.4

In a family action, where the identity or address of any person referred to in rule 49.8 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

49.5

In a family action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom a maintenance order (within the meaning of section 106 of the Debtors (Scotland) Act 1987[^f00097]) has been granted in favour of or against that party or any other person in respect of whom the order is sought.

Averments where aliment sought for a child

49.6

(1) In this rule–

“the Act of 1991” means the Child Support Act 1991[^f00098];

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

“conclusion relating to aliment” means–for the purposes of paragraph (2), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree; andfor the purposes of paragraph (3), a conclusion 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 assessment” has the meaning assigned in section 54 of the Act of 1991.

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

(a) include averments stating, where appropriate–

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

(ii) the date of the maintenance assessment;

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

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

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

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

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

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

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

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

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

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

Warrants for arrestment or inhibition on dependence

49.7

(1) A warrant for inhibition or arrestment on the dependence in a family action or in respect of a claim to which section 19 of the Act of 1985 (action for aliment or claim for order for financial provision) applies shall be applied for by motion.

(2) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (1) shall be sufficient authority for execution of the diligence.

(3) A certified copy of the interlocutor containing a warrant for inhibition granted under this rule and an execution of service of it may be registered in the Register of Inhibitions and Adjudications.

(4) A notice of a certified copy of the interlocutor containing a warrant for inhibition granted under this rule may be registered in the Register of Inhibitions and Adjudications; and such registration is to have the same effect as registration of a notice of inhibition under section 155(2) of the Titles to Land Consolidation (Scotland) Act 1868.

Warrants for intimation in family actions

49.8

(1) Subject to paragraph (5) and rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views), in the summons in a family action, the pursuer shall insert 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 child of the marriage between the parties, or child who has been accepted by both partners of a civil partnership as a child of the family, 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, in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage [or to (name and address) as a child who has been accepted by both partners of a civil partnership as a child of the family][or to (name and address) the (relationship to defender), as one of the next-of-kin of the defender].”

(b) in an action where the pursuer alleges that the defender has committed adultery with another person, to that person, unless–

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

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

in the following terms:– “Warrant to intimate to (name and address) as a person with whom the defender is alleged to have committed adultery.”;

(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 reasonable be ascertained;

(ii) any person holding the office of curator bonis to the defender, if one has been appointed; and

(iii) any person holding the office of guardian, or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000, if one has been appointed,

in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage [or to (name and address) as a child who has been accepted by both partners of a civil partnership as a child of the family], (name and address) the (relationship to the defender) as one of the next-of-kin of the defender and (name and address) guardian [or continuing [or welfare] attorney] to the defender.”

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

(i) one of the decrees specified in section 2(2)of the Matrimonial Proceedings (Polygamous Marriages) Act1972[^f00100] is sought; and

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

to any such additional spouse in the following terms:– “Warrant to intimate to (name and address) as an additional spouse of the pursuer [or defender].”;

(e) in an action of divorce, separation, declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership where the court may make a section 11 order in respect of a child–

(i) who is in the care of a local authority, to that local authority in the following terms:–“Warrant to intimate to the chief executive of (name and address of local authority) as the local authority having care of (name and address of child).”;

(ii) who, being a child of one party to the marriage who has been accepted as a child of the family by the other party to the marriage or is a child of one partner in a civil partnership who has been accepted by both partners as a child of the family, and who is liable to be maintained by a third party, to that third party in the following terms:–“Warrant to intimate to (name and address) as a person liable to maintain (name and address of child).”; or

(iii) in relation to whom a third party in fact exercises care or control, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person who in fact exercises care or control of (name and address of child).”

(f) in an action where the pursuer concludes for a section 11 order, to any parent or guardian of the child who is not a party to the action in the following terms:– “Warrant to intimate to (name and address) as a parent [or guardian].”;

(g) in an action where the pursuer concludes for a residence order in respect of a child and he is–

(i) not a parent of that child, and

(ii) resident in Scotland when the summons is presented for signeting,

to the local authority within which area the pursuer resides in the following terms:– “Warrant to intimate to the chief executive of (name and address of local authority) as the local authority within which area the pursuer, not being a parent of (name and address of child), resides.”;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

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

in the following terms:– “Warrant to intimate to (name and address) as the person in whose favour the transfer of [or transaction involving] property referred to in the condescendence attached to this summons was made [or is to be made] [or is a person having an interest in the transfer of [or transaction involving] property referred to in the condescendence attached to this summons].”; ...

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

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

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

in the following terms:–“Warrant to intimate to (name and address) as a person with an interest in the order sought in the (number) conclusion of this summons.”

(l) in an action where the pursuer makes an application for an order under–

(i) section 8(1)(ba) of the Act of 1985 (orders under s.12A of the Act of1985 for pension lump sum), or

(ii) section 8(1)(baa) of that Act (pension sharing orders),

to the person responsible for the pension arrangement, in the following terms “Warrant to intimate to (name and address) as the person responsible for the pension arrangement in respect of which an order is sought in the (number) conclusion of this summons.

(m) in an action where the pursuer makes an application for an order under Chapter 3 of Part 3 of the CP 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, in the following terms:— “Warrant to intimate to (name and address) as a person with an interest in the order sought in the (number) conclusion of this summons;“ ”

(n) in an action where the pursuer makes an application for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy) to any person having an interest in the deceased’s net intestate estate, in the following terms:— “Warrant to intimate to (name and address) as a person having an interest in the deceased’s net intestate estate referred to in the condescendence attached to this summons.“ ”

(2) Expressions used in—

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

(ii) paragraph (1)(m) which are also used in the CP Act of 2004; and

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

have the meanings given in those Acts, or that section, as the case may be.

(3) A notice of intimation shall be attached to the copy of the summons where intimation is given on a warrant–

(a) under paragraph (1)(a) (address of defender not know), in Form 49.8–A;

(b) under paragraph (1)(b) (allegation of adultery), in Form 49.8–B;

(d) under paragraph (1)(d) (polygamous marriage), in Form 49.8–D;

(e) under paragraph (1)(e)(i) or (ii) (where section 11 order may be made in respect of a child in care of local authority or accepted as a child of the marriage), in Form 49.8-E;

(f) under paragraph (1)(e)(iii) (where section 11 order may be made in respect of a child in relation to whom a third party in fact exercises care or control), in Form 49.8-F;

(g) under paragraph (1)(f) (section 11 order sought by guardian), in Form 49.8-G;

(h) under paragraph (1)(g) (residence order sought by non-parent resident in Scotland), in Form 49.8-H;

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j) under paragraph (1)(i) (transfer of property), in Form 49.8–J;

(k) under paragraph (1)(j) (avoidance transactions), in Form 49.8–K;

(l) under paragraph (1)(k) (orders sought under the Act of 1981), in Form 49.8–L;

(m) under—

(i) paragraph (1)(l)(i) (orders for pension lump sums) in Form 49.8—M; and

(ii) paragraph (1)(l)(ii) (person sharing orders), in Form 49.8MA;

(n) under paragraph (l)(m) (order sought under Chapter 3 of Part 3 of the CP Act of 2004), in Form 49.8—O; and

(o) under paragraph (1)(n)(order under section 29 of the Act of 2006), in Form 49.8—P

(4) In a family action, where the pursuer–

(a) concludes for a residence order in respect of a child;

(b) is not a parent of the child; and

he shall, on presenting the summons for signeting, apply by motion for an order for intimation in Form 49.8–H to such local authority as the court thinks fit.

(5) Where the address of a person mentioned in paragraph (1)(b), (d), (e), (f), (g), (i), (j), (k) or (l) is not known and cannot reasonably be ascertained, the pursuer shall, immediately after the calling of the summons, apply by motion to dispense with intimation; and the court may grant that motion or make such other order as it thinks fit.

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

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

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intimation where relevant association

49.9

(1) In a family action where the pursuer alleges a relevant association as defined in paragraph (4) between the defender and another named person, the pursuer shall, when the summons is presented for signeting, apply by motion for an order for intimation to that person or to dispense with such intimation.

(2) In determining a motion under paragraph (1), the court may–

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

(b) dispense with intimation; and

(c) where it dispenses with intimation, order that the name of that person be deleted from the condescendence of the summons.

(3) Where intimation is ordered under paragraph (2), a notice of intimation in Form 49.9 shall be attached to the copy of the summons to be intimated.

(4) In paragraph (1), “relevant association” means sodomy, incest or any homosexual relationship , and where the family action is in relation to a civil partnership shall include any heterosexual relationship.

Productions in action of divorce or where section 11 order may be made

49.10

(1) There shall be lodged as a production with the principal writ when first lodged in process–

(a) in an action of divorce–

(i) an extract or certified copy of the relevant entry in the register of marriages; and

(ii) where an action relies on section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate), the interim gender recognition certificate or a certified copy of it;

(b) in an action of dissolution of a civil partnership–

(i) an extract or certified copy of the relevant entry in the civil partnership register; and

(ii) where the action relies on section 117(2)(b) of the CP Act of 2004 (grounds for dissolution of civil partnership: interim gender recognition certificate), the interim gender recognition certificate or a certified copy of it; and

(c) in a family action in which the court may make a section 11 order, an extract or certified copy of the relevant entry in the register of births.

(2) In the application of sub-paragraph (a) of paragraph (1) to an action of divorce, or sub-paragraph (b) of paragraph (1) in an action of dissolution of a civil partnership, where the address of the defender is not known, the documents to be lodged under those sub-paragraphs, as the case may be, shall be obtained and dated within three months before the date on which it is lodged.

Execution of service on, or intimation to, local authority

49.11

(1) Where a local authority referred to in rule 49.8(1)(g) (residence order sought by non-parent resident in Scotland) or rule 49.8(4) (residence order sought by non-parent not resident in Scotland) is called as a defender in a summons at the time of signeting, service of the summons on that local authority shall be executed within 7 days after the date of signeting.

(2) Where in a family action–

(a) to which rule 49.8(1)(g) applies, or

(b) in which a motion under rule 49.8(4) is required,

the local authority referred to in that provision is called as a defender in the summons at the time of signeting, a notice in Form 49.8–H shall be attached to the copy of the summons served on that local authority unless the court otherwise orders.

(3) In any family action, the court may, if it thinks fit, order intimation to a local authority, and such intimation shall be in Form 49.8-H.

(4) Where, by virtue of paragraph (3) of this rule or rule 49.8(1)(g), 49.8(4) or 49.15(3), intimation of an application for a section 11 order is to be made to a local authority, intimation to that local authority shall be given within 7 days after the date of signeting or order for intimation, as the case may be; and a notice in Form 49.8–H shall be attached to the copy of the summons intimated to that local authority.

Notice of actions by advertisement

49.12

Where notice of a family action is given by advertisement under rule 16.5 (service where address of person is not known), the period of notice shall be 21 days from the date of publication of the advertisement unless the court otherwise orders.

Service in cases of mental disorder of defender

49.13

(1) In a family action where the defender suffers or appears to suffer from mental disorder and is resident in a hospital or other similar institution, service of the summons shall be executed in accordance with rule 16.4 (service by post) addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the summons–

(a) any notice required by rule 49.14(1) (notices in certain actions of divorce or separation) or by rule 49.14A(1) (notices in certain actions of dissolution of civil partnership or separation of civil partners);

(b) a request in Form 49.13–A requesting the medical officer to–

(i) deliver and explain the summons, citation and any notice or form of notice of consent required under rule 49.14(1) or rule 49.14A(1); or

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

(iii) complete the certificate in Form 49.13–B; and

(2) The medical officer referred to in paragraph (1) shall send the certificate in Form 49.13–B duly completed to the pursuer or his agent, as the case may be.

(3) The certificate mentioned in paragraph (2) shall be attached to the summons when it is lodged for calling.

(4) Where such a certificate bears that the summons has not been delivered to the defender, the court may, at any time while the action is depending–

(a) order such further medical inquiry, and

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

as it thinks fit.

Notices in certain actions of divorce or separation

49.14

(1) In the following actions of divorce or separation, there shall be attached to the copy of the summons served on the defender–

(a) in an action relying on section 1(2)(d) of the Act of 1976[^f00103] (no cohabitation for one year with consent of defender to decree)–

(i) which is an action of divorce, a notice in Form 49.14–A and a form of notice of consent in Form 49.14–B;

(ii) which is an action of separation, a notice in Form 49.14–C and a form of notice of consent in Form 49.14–D;

(b) in an action relying on section 1(2)(e) of the Act of 1976 (no cohabitation for two years)–

(i) which is an action of divorce, a notice in Form 49.14–E;

(ii) which is an action of separation, a notice in Form 49.14–F.

(c) in an action relying on section 1(1)(b) of the Act of 1976 (grounds for divorce: interim gender recognition certificate), a notice in Form 49.14–G.

(2) The certificate of service of a summons in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been included with the summons.

Orders for intimation by the court

49.15

(1) Except in relation to intimation to a child in Form 49.8A, in any family action, the court may, at any time–

(a) ..., order intimation to be made to such person as it thinks fit;

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

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

(3) Where a party makes an application or averment in a family action which, had it been made in a summons when presented for signeting, would have required a warrant for intimation under rule 49.8, that party shall apply by motion for a warrant for intimation or to dispense with such intimation; and rule 49.8 shall, with the necessary modifications, apply to a warrant under this paragraph as it applies to a warrant under that rule.

Interested persons entering process

49.16

(1) A person on whom intimation has been made of a family action or an application in a family action, may apply by minute for leave to be sisted as a party and to lodge defences, answers or a minute, as the case may be–

(a) where the intimation was made on a warrant in a summons, within 7 days after the summons is lodged for calling; and

(b) in any other case, within the period of notice.

(2) Where the court grants a motion under paragraph (1), it shall make such order for further procedure as it thinks fit.

Appointment of curators ad litem to defenders

49.17

(1) This rule applies to a family action where it appears to the court that the defender has a mental disorder.

(2) In an action to which this rule applies, the court shall, after the expiry of the period for lodging defences–

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

(b) make an order requiring the curator ad litemto 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 copy of the summons and any defences lodged (including any adjustments and amendments).

(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.

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

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

(a) defences to the action;

(b) a minute adopting defences already lodged in process; and

(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.

(8) At such intervals as the curator ad litemconsiders reasonable having regard to the nature of the defender’s mental disorder, the curator ad litemmust 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 court’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

Applications for sist

49.18

An application for a sist, or there call of a sist, under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973[^f00104] shall be made by motion.

49.19

(1) Where, in an action of divorce, or separation in which the facts in section 1(2)(d) of the Act of 1976, or dissolution of a civil partnership or separation of civil partners in which the facts in section 117(3)(d) of the CP Act of 2004, (no cohabitation for one year with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree–

(a) of divorce or separation he shall do so by giving notice in writing in Form 49.14–B (divorce) or Form 49.14–D (separation), as the case may be; or

(b) of dissolution of a civil partnership or separation of civil partners, he shall do so by giving notice in writing in Form 49.14A–B (dissolution) or Form 49.14A–D (separation of civil partners), as the case may be;

to the Deputy Principal Clerk.

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

(3) In an action of divorce, separation, dissolution of a civil partnership, or separation of civil partners where the summons includes for the purposes of section 1(2)(d) of the Act of 1976, or section 117(3)(d) of the CP Act of 2004, as the case may be, an averment that the defender consents to the grant of decree, the defender may give notice by letter to the Deputy Principal 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 Deputy Principal Clerk shall–

(a) cause the letter to be lodged in process; and

(b) give written intimation of the terms of the letter to the pursuer.

(5) On receipt of an intimation under paragraph (4)(b), the pursuer may, within 14 days after the date of the intimation, if none of the other facts mentioned in section 1(2) of the Act of 1976 or section 117(3) of the CP Act of 2004, as the case may be, is averred in the summons, apply by motion for the action to be sisted.

(6) If no such motion is enrolled, 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.

Consents to grant of custody

49.20

(1) This rule applies to undefended actions in which a section11 order is sought and warrant has been granted for intimation and the seeking of the child’s views in Form49.8A.

(2) The pursuer must—

(a) following the expiry of the period for lodging defences, send the child the Form49.8A that was submitted and approved under rule 49.8A (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 49.8B;

(3) Except on cause shown, the court must not grant decree in the period of 28 days following the date on which the Form 49.8A was sent to the child.

Reports by local authorities under section 49(2) of the Act of 1975

49.21

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

Appointment of local authority or reporter to report on a child

49.22

(1) At any stage of a family action the court 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 court is satisfied that the appointment—

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

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

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

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

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

(c) where the appointment is under paragraph (1)(a), specify the issues in respect of which the child’s views are to be sought and include a direction as to whether a copy of the report is to be provided to the parties under paragraph (9)(d); ...

(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 ; 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 49.22.

(5) Where the court 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 Office of Court is not open, unless cause is shown for specifying a later date.

(6) On appointing a child welfare reporter, the court 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

(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 entered appearance; and

(iii) any other person who has been sisted as a party to the proceedings; 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 Deputy Principal 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;

(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 Deputy Principal Clerk to be given further directions by the court; ...

(b) bring to the attention of the Deputy Principal 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 court may, having heard parties, make any order or direction that could competently have been made under paragraph (6).

Referral to family mediation and conciliation service

49.23

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

Applications for orders to disclose whereabouts of children

49.24

(1) An application for an order under section 33(1) of the Family Law Act 1986[^f00108] (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

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

Applications in relation to removal of children

49.25

(1) An application for leave under section 51(1) of the Act of 1975[^f00109] (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)–

(a) by a party, shall be made by motion;

(b) by a person other than a party, shall be made by minute in the process of that action.

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

(3) An application under section 23(2) of the Child Abduction and Custody Act 1985[^f00110] (declarator that removal of child from United Kingdom was unlawful) shall be made–

(a) in an action depending before the court–

(i) by a party, in the summons, 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.

Intimation to local authority before supervised contact order

49.26

(1) Where the court, at its 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, it shall ordain the party moving for such an order to intimate to the chief executive of that local authority (unless 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 court to order that the contact order be supervised by the social work department of that local authority; and

(i) notify the Keeper of the Rolls whether it intends to make representations to the court through counsel or other person having a right of audience or in writing; and

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

(2) After receiving notice or written representations, as the case may be, under paragraph (1)(c), the Keeper of the Rolls shall put the action out on the By Order Roll before the Lord Ordinary on such a date as may be convenient, for the court to determine, after considering any representations of a local authority under paragraph (1), whether to order such supervision.

Joint minutes

49.27

Where any parties have reached agreement in relation to–

(a) a a section 11 order,

(b) aliment for a child, or

a joint minute may be entered into expressing that agreement; and, subject to rule 49.20(3) (no order before views of child expressed), the court may grant decree in respect of those parts of the joint minute in relation to which it could otherwise make an order, whether or not such a decree would include a matter for which there was no conclusion or crave.

Evidence in certain undefended family actions

49.28

(1) This rule–

(a) subject to sub-paragraph (b), applies to all family actions in which no defences have been lodged, other than a family action–

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) for financial provision after an overseasdivorce or annulment within the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984[^f00111]; or

(iii) for an order under the Act of 1981[^f00112];

(iv) for financial provision after overseas proceedings to dissolve or annul a civil partnership within the meaning of Schedule 11 to the CP Act of 2004; or

(v) for an order under Chapter 3 or 4 of Part 3 of the CP Act of 2004;

(vi) for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section7(9) of the Domicile and Matrimonial Proceedings Act 1973;

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

(b) applies to a family action in which a curator ad litem has been appointed under rule 49.17(2)(a) where the curator ad litem to the defender has lodged a minute intimating that he does not intend to lodge defences;

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

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

(3) Unless the court otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being sworn 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.

(5) Rule 36.8 (lodging of certain written statements) shall not apply in an undefended family action to which this rule applies.

Procedure for decree in actions under rule 49.28

49.29

(1) In an action to which rule 49.28 (evidence in certain undefended family actions) applies, if counsel or other person having a right of audience, on consideration of the available affidavits and support in documents, is satisfied that a motion for decree may properly be made, he may, at any time after the expiry of the period for lodging defences, move the court by minute in Form 49.29–A to grant decree in terms of the conclusions of the summons or in such restricted terms as may be appropriate.

(2) On lodging such a minute in process, the pursuer shall–

(a) lodge in process the documents specified in the schedule to the minute; and

(b) send to the Deputy Principal Clerk, Form 49.29–B duly completed.

(3) The court may, at any time after the minute and other documents referred to in paragraph (2) have been lodged, without requiring the appearance of counsel or other person having a right of audience–

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

(b) put the action out on the By Order Roll before the Lord Ordinary for such further procedure, if any, including proof by parole evidence, as the court thinks fit.

(4) Notice shall be given in the rolls of all decrees granted under paragraph (3)(a).

No suspension in undefended divorce actions

49.30

A defender may not bring any proceedings for the suspension of any decree of divorce or dissolution of a civil partnership pronounced in an undefended action.

Defences in family actions

49.31

(1) This rule applies where the defender in a family action seeks–

(a) to oppose any conclusion in the summons;

(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

(i) under section 16(1)(b) or (3) of theAct of 1985[^f00113] (setting aside or varying agreement as to financial provision);

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

(iii) under the Act of 1981; or

(iv) under Chapter 3 or 4 of Part 3 of the CP Act of 2004

(d) to challenge the jurisdiction of the court.

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

(a) lodge defences to the action in process; and

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

(i) conclusions;

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

(iii) appropriate pleas-in-law.

(3) Subject to paragraph (4), where the defences include a conclusion for a section 11 order in respect of a child who is not a party to the action and where the summons does not include a conclusion for a section 11 order, the defender must, when the defences are lodged—

(a) apply by motion for a warrant for intimation and the seeking of the child’s views in Form 49.8A;

(b) submit a draft Form 49.8A, showing the details that the defender proposes to include when the form is sent to the child.

(4) Where the defender considers that it would be inappropriate to send Form 49.8A to the child (for example, where the child is under 5 years of age), the defender must—

(a) when the defences are lodged, apply by motion for the court to dispense with intimation and the seeking of the child’s views in Form 49.8A, specifying which numbered paragraphs of the defences contain the reasons for the request;

(b) include in the defences averments setting out the reasons why it is inappropriate to send Form 49.8A to the child.

(5) The court must be satisfied that the draft Form 49.8A submitted under paragraph(3)(b) has been drafted appropriately.

(6) The court may dispense with intimation and the seeking of views in Form 49.8A or make any other order that it considers appropriate.

(7) An order granting warrant for intimation and the seeking of the child’s views in Form49.8Aunder this rule must—

(a) state that the Form 49.8A must be sent to the child in accordance with rule 49.20B (views of the child – section 11 order sought by defender only);

(b) be signed by the Lord Ordinary.

Abandonment by pursuer

49.32

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

Adjustment and further procedure

49.33

(1) Chapter 22 (making up and closing records) shall not apply to a family action.

(2) The court shall, 14 days after the date on which defences were lodged, or a minute by a person on whom intimation has been made under rule 49.8, 49.9, or 49.15 was lodged, pronounce an interlocutor allowing the parties a proof of their respective averments.

(3) Notwithstanding the pronouncement of an interlocutor under paragraph (2), the parties may adjust their respective pleadings until 56 days before the diet of proof; and any such adjustments shall be written on the summons, defences or minute, as the case may be.

(4) Not earlier than 28 days after the allowance of proof, the court may, on cause shown, withdraw the allowance of proof and appoint the action to the Procedure Roll.

(5) The pursuer shall, within 7 days after the end of the adjustment period under paragraph (3) or the appointment of the action to the Procedure Roll, as the case may be–

(a) subject to rule 49.68 (procedure for minutes in causes under the Act of 1981) or rule 49.71E (procedure for minutes in causes under Chapters 3 and 4 of Part 3 of the CP Act of 2004) as the case may be, make up a copy of the adjusted pleadings in the form of a record;

(b) send not less than three copies of the record to every other party; and

(c) not later than 48 hours before the diet of proof or hearing on the Procedure Roll, as the case may be, lodge two copies of the record in process.

Late appearance by defenders

49.34

(1) In a family action, the court may, at any time while the action is depending, make an order with such conditions, if any, as it thinks fit, allowing a defender–

(a) to lodge defences to the action; or

(b) 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 court makes an order under paragraph (1)(a), 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 the court makes an order under paragraph (1)(a), it must order any steps to be taken that it considers appropriate to obtain or hear the views of the child in relation to any section 11 order that may be sought by the defender.

Application and interpretation of this Part

49.35

This Part applies to actions of divorce, separation, declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners and declarator of nullity of a civil partnership.

Applications in actions to which this Part applies

49.36

(1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a conclusion in the summons 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.

Intimation before committal to care or supervision

49.37

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

Care or supervision orders

49.38

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

Intimation of certain applications to local authorities or other persons

49.39

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

Applications in depending actions by motion

49.40

(1) 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) an interim residence order or an interim contact order,

shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree relating to parental rights or care

49.41

(1) An application after final decree for, or for the 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–

(a) may apply by motion for any interim order which may be made pending the determination of the application; and

(b) shall intimate any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree relating to access or supervision

49.42

(1) Subject to paragraph (2), when lodging a minute under rule 49.41 (applications after decree relating to a section 11 order) 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 49.8A;

(b) when lodging the minute, submit a draft Form 49.8A, 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 49.8A 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 Form49.8A;

(b) averments setting out the reasons why it is inappropriate to send Form 49.8A to the child.

(3) The court must be satisfied that the draft Form 49.8A submitted under paragraph(1)(b) has been drafted appropriately.

(4) The court may dispense with intimation and the seeking of views in Form 49.8A or make any other order that it considers appropriate.

(5) An order granting warrant for intimation and the seeking of the child’s views in Form49.8A under this rule must—

(a) state that the Form 49.8A must be sent in accordance with rule 49.42(6);

(b) be signed by the Lord Ordinary.

(6) The Form 49.8A must be sent in accordance with—

(a) rule 49.42A (views of the child – unopposed minutes relating to a section 11 order), where the minute is unopposed;

(b) rule 49.42B (views of the child – craves relating to a section 11 order sought by minuter only), where the minute is opposed and a section11 order is sought by the minuter only; or

(c) rule49.42C (views of the child – craves relating to a section 11 order sought by both minuter and respondent), where a section11 order is sought by both the minuter and the respondent.

Applications after decree relating to aliment

49.43

(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 motion in the process of the action to which the application relates.

(2) A motion under paragraph (1) shall–

(a) include a brief statement of the reasons for the order sought; and

(b) be intimated by registered post or the first class recorded delivery service to any person concerned or a solicitor known to be acting on behalf of that person, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation;

(b) the Post Office receipt or certificate of posting of that letter; and

(c) written evidence of the earnings or other income of the applicant or, if not employed, written evidence of that fact.

(4) At the hearing of a motion under paragraph (1), the court may order that the application be made by minute; and, in such a case, shall make an order for the lodging of answers to the minute in process within such period as the court thinks fit.

(5) Where the court makes an order under paragraph (4), any party–

(a) may apply by motion for an interim order pending the determination of the application; and

(b) shall give written intimation of any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Applications after decree by persons over 18 years for aliment

49.44

(1) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985[^f00117],

(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 a 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 motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

Application and interpretation of this Part

49.45

(1) This Part applies to an action of divorce, declarator of nullity of marriage, dissolution of a civil partnership, or declarator of nullity of a civil partnership.

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

Applications in actions to which this Part applies

49.46

(1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a conclusion in the summons 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);

(d) an order under section 13 of the Act of 1981[^f00118] (transfer or vesting of tenancy of a matrimonial home).

(e) an order under section 112 of the CP Act of 2004.

Applications in depending actions relating to incidental orders

49.47

(1) In an action depending before the court to which this Part applies–

(a) the pursuer or defender, notwithstanding rule 49.31(2) (application by defender for order for financial provision) and rule 49.46(1)(a) (application for order for financial provision in summons or defences), may apply by motion for an incidental order; and

(b) the court shall not be bound to determine such a motion if it considers that the application should properly be by a conclusion in the summons or defences, as the case may be.

(2) In an action depending before the court 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 motion.

Applications relating to interim aliment

49.48

(1) 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.

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

Applications relating to orders for financial provision

49.49

(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 tran sfer 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), 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 motion in the process of the action to which the application relates.

(2) Rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this rule as it applies to a motion under paragraph (1) of that rule.

(3) 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 person responsible for the pension arrangement),

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

Applications after decree relating to agreements or avoidance transactions

49.50

An application for an order–

(a) under section 16(1)(a) or (3) of the Act of 1985 (setting aside or varying agreement 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.

Form of applications relating to avoidance transactions

49.51

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

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

Interpretation of this Part

49.52

In this Part–

“the Act of 1984” means the Matrimonial and Family Proceedings Act 1984[^f00119];

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

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

Applications for financial provision after overseas divorce or annulment

49.53

(1) An application under section 28 of the Act of 1984[^f00120] for an order for financial provision after a divorce or annulment in an overseas country shall be made by summons.

(2) An application for an order in an action to which paragraph (1) applies–

(a) made before or after final decree under–

(i) section 13 of the Act of 1981[^f00121] (transfer of tenancy of matrimonial home),

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

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

(b) made after final decree under–

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

(ii) section 13(4) of the Act of 1985 (variation, recall, backdating or conversion of periodical allowance), or

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

shall be made by motion.

(3) Rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this rule as it applies to a motion under paragraph (2) of that rule.

(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 person responsible for the pension arrangement),

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

Interpretation of this Part

49.54

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

Undefended actions of aliment

49.55

(1) Where a motion for decree in absence is enrolled in an action of aliment, the pursuer shall, on enrolling the motion, lodge all documentary evidence of the means of the parties available to him in support of the amount of aliment sought.

(2) Where the court requires any appearance for the pursuer, the cause shall be put out for hearing on the Motion Roll.

Applications relating to aliment

49.56

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

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

(3) An application after final decree for the variation or recall of an order for aliment in an action of aliment shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

(4) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985[^f00122],

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

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

shall apply by minute in the process of that action.

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

(6) Where a decree has been pronounced in an application under paragraph (3) or (4), any application for variation or recall of any such decree shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

Applications relating to agreements on aliment

49.57

An application under section 7(2) of the Act of 1985 (variation or termination of agreement on aliment) shall be made by summons or in defences in a family action, as the case may be.

Application and interpretation of this Part

49.58

This Part applies to an application for a section 11 order in a family action other than in an action of divorce, separation, declarator of nullity of marriage, dissolution of a civil partnership, separation of civil partners, or declarator of nullity of a civil partnership.

Form of applications relating to parental rights

49.59

Subject to any other provision in this Chapter, an application for an order for any parental rights in respect of a child shall be made–

(a) by an action for parental rights,

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

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

Defenders in actions for parental rights

49.60

In an action for a section 11 order, the pursuer shall call as a defender–

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

(b) any guardian of the child;

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

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

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Act of Sederunt (Rules of the Court of Session 1994) 1994

Transfer of action to procedure in this Chapter

47.7

Inspection and recovery of documents in commercial actions

47.8

Exchange of lists of witnesses in commercial actions

47.9

Evidence generally in commercial actions

47.10

Customs of trade

47.11

CHAPTER 48 — EXCHEQUER CAUSES

Proceedings before Lord Ordinary in Exchequer Causes

48.1

Procedure in Exchequer causes

48.2

Precedence of extracts

48.3

CHAPTER 49 — FAMILY ACTIONS

Interpretation of this Chapter

49.1

Averments in certain family actions about other proceedings

49.2

Averments where custody sought

49.3

Averments where identity or address of person not known

49.4

Averments about maintenance orders

49.5

Averments where aliment sought for a child

49.6

Warrants for arrestment or inhibition on dependence

49.7

Warrants for intimation in family actions

49.8

Intimation where relevant association

49.9

Productions in action of divorce or where section 11 order may be made

49.10

Execution of service on, or intimation to, local authority

49.11

Notice of actions by advertisement

49.12

Service in cases of mental disorder of defender

49.13

Notices in certain actions of divorce or separation

49.14

Orders for intimation by the court

49.15

Interested persons entering process

49.16

Appointment of curators ad litem to defenders

49.17

Applications for sist

49.18

Notices of consent to divorce or separation

49.19

Consents to grant of custody

49.20

Reports by local authorities under section 49(2) of the Act of 1975

49.21

Appointment of local authority or reporter to report on a child

49.22

Referral to family mediation and conciliation service

49.23

Applications for orders to disclose whereabouts of children

49.24

Applications in relation to removal of children

49.25

Intimation to local authority before supervised contact order

49.26

Joint minutes

49.27

Evidence in certain undefended family actions

49.28

Procedure for decree in actions under rule 49.28

49.29

No suspension in undefended divorce actions

49.30

Defences in family actions