Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 © Crown Copyright 2006 Scottish Statutory Instruments printed from this website are printed under the superintendence and authority of the Controller of HMSO being the Queen's Printer of Acts of Parliament. The legislation contained on this web site is subject to Crown Copyright protection. It may be reproduced free of charge provided that it is reproduced accurately and that the source and copyright status of the material is made evident to users. It should be noted that the right to reproduce the text of Scottish Statutory Instruments does not extend to the Queen's Printer for Scotland imprints which should be removed from any copies of the Scottish Statutory Instrument which are issued or made available to the public. This includes reproduction of the Scottish Statutory Instrument on the Internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this Internet version of the Scottish Statutory Instrument has been prepared to reflect the text as it was Made. A print version is also available and is published by The Stationery Office Limited as the Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006, ISBN 0110702727. The print version may be purchased by clicking here. Braille copies of this Scottish Statutory Instrument can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail: customer.services@tso.co.uk. Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions. To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.
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)–
(b) after sub-paragraph (c) there shall be inserted the following:–
(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)–
(b) after sub-paragraph (a) there shall be inserted the following:–
(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]".
(b) for paragraph (1B)[7] there shall be substituted the following:–
(b) "civil partnership action" has the meaning given in rule 33A.1(1).".
(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))".
(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)".
(o) an action of declarator of nullity of marriage."; and
(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)–
(ii) in paragraph (1), for "or separation" there shall be substituted ", separation, declarator of marriage or declarator of nullity of marriage"; and (iii) in paragraph (2)(b)(v)[12], for the words from "or Council Regulation" to "spouses" there shall be substituted "or Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility[13]."
(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".
(b) after paragraph (1)(c)(ii) there shall be inserted the following:–
(c) in paragraph (1)(e), for "or separation" there shall be substituted ", separation or declarator of nullity of marriage"; and
(18) In rule 33.8 (intimation where improper association)–
(b) in paragraph (1), for "alleges an improper" there shall be substituted "founds upon an"; and (c) in paragraph (4) "improper" shall be omitted.
(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".
(b) in sub-paragraph (b), for "five" there shall be substituted "two"; and (c) after sub-paragraph (b), there shall be inserted the following:–
(22) In rule 33.16 (appointment of curators ad litem to defenders)–
(b) in paragraph (2)(b), for "two years" there shall be substituted "one year".
(23) In rule 33.18(1) (notices of consent to divorce or separation), for "two years" there shall be substituted "one year";
33.27A. An application under section 3A(1)[16] (application for postponement of decree where religious impediment to marry exists) or section 3A(4) (application for recall of postponement) of the Act of 1976 shall be made by minute in the process of the action to which the application relates.";
(26) In rule 33.30 (extracts of undefended decree), for "pursuers" there shall be substituted "pursuer".
(b) after paragraph (c) there shall be inserted—
(d) where the application is made under section 18A of the Act of 1981[17] (application for domestic interdict), the other partner.".
(33) In rule 33.69(1) (applications by motion), sub-paragraph (d) shall be omitted.
(ii) for "five" there shall be substituted "two"; and (iii) after "years)" there shall be inserted "or section 1(1)(b) (issue of interim gender recognition certificate)[19]".
(b) in sub-paragraph (e) "and" shall be omitted; and
(g) there is no religious impediment to the remarriage of either party".
(37) In rule 33.74 (form of simplified divorce applications)–
(b) in paragraph (2), for "five" there shall be substituted "two"; and (c) after paragraph (2) there shall be inserted—
(38) In rule 33.75 (lodging of applications)–
(b) after paragraph (b) there shall be inserted the following:–
(c) in an application under section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate), the interim gender recognition certificate or a certified copy within the meaning of rule 33.9A(3)[20].".
(39) In rule 33.76(3) (citation and intimation)–
(b) after paragraph (b) there shall be inserted the following:–
(40) In rule 33.77(1) (citation where address not known)–
(b) after "years)" there shall be inserted "or section 1(1)(b) of the Act of 1976 (grounds of divorce: issue of interim gender recognition certificate)".
(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)–
(b) in paragraph (1), after "dissolution" there shall be inserted "or declarator of nullity".
(43) In rule 33A.3(1)(a) (averments where section 11 order sought), after "dissolution" there shall be inserted "or declarator of nullity".
(b) in sub-paragraph (b), for "five" there shall be substituted "two"; and (c) after sub-paragraph (b), there shall be inserted the following:–
(47) In rule 33A.16 (appointment of curators ad litem to defenders)–
(b) in paragraph (2)(b), for "two years" there shall be substituted "one year".
(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".
(b) for "five" there shall be substituted "two".
(56) In rule 33A.67 (form of applications) the following:–
(b) in paragraph (2), for "five" there shall be substituted "two".
(57) In rule 33A.70(1) (citation where address not known), for "five" there shall be substituted "two". Interpretation of this Chapter 33B. In this Chapter—
33B.
—(1) An application under—
(b) section 29(2) of the Act for an order for financial provision by the survivor on intestacy,
shall be made by initial writ.
(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.
(59) In rule 41.2 (attachment of power of arrest to interdict)[23], after "section 1(2)" there shall be inserted "or (1A)[24]".
(b) in paragraph 1(a) of Form F21, for "two years" there shall be substituted "one year"; (c) in Form F23—
(ii) in paragraph 1—
(bb) the words from "unless" to the end of that paragraph shall be omitted; and
(iii) in paragraph 3, for "five" there shall be substituted "two";
(d) in Form F24—
(ii) in paragraph 1—
(bb) the words from "unless" to the end of that paragraph shall be omitted; and
(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;
(ii) in paragraph 4(ii) of the directions for making application for the words, from "the Sheriff Clerk" to the end of that paragraph there shall be substituted “"the Scottish Court Service" or a completed fee exemption form“; (iii) in Part B of paragraph 3 of Part 1—
(cc) in sub-paragraph (ii), for "considers himself or herself to be" there shall be substituted "is"; (dd) in sub-paragraph (iii), for "the Council Regulation" there shall be substituted "Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of Parental Responsibility (O.J. No L.338, 23.12.2003, p.1)";
(iv) in Part C of paragraph 3 of Part 1, after sub-paragraph (ii) there shall be inserted—
you or your spouse? (if yes, give details)";
(ix) in the first paragraph of Part 2, for "two years" there shall be substituted "one year"; and (x) in paragraph (b) of the statement of consent, for "two years" there shall be substituted "one year";
(h) in Form F33—
(ii) in paragraph 3(ii) of the directions for making application, for the words from "the Sheriff Clerk" to the end of that paragraph there shall be substituted “"the Scottish Court Service" or a completed fee exemption form“; (iii) in Part B of paragraph 5 of Part 1—
(cc) in sub-paragraph (ii), for "considers himself or herself to be" there shall be substituted "is"; (dd) in sub-paragraph (iii), for "the Council Regulation" there shall be substituted "Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of Parental Responsibility (O.J. No L.338, 23.12.2003, p.1)";
(iv) in Part C of paragraph 5 of Part 1, after sub-paragraph (ii) there shall be inserted—
you or your spouse? (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;
(ii) in the first paragraph, for "two years" there shall be substituted "one year" and (iii) paragraph 1(b) shall be omitted;
(k) in Form F35—
(ii) in the first paragraph, for "five" there shall be substituted "two"; and (iii) paragraph 1(b) shall be omitted;
(l) after Form F35 there shall be inserted the Form F35A set out in the Schedule to this Act of Sederunt;
(ii) in paragraph 1—
(bb) the words from "unless" to the end of that paragraph shall be omitted.
(p) in Form CP25—
(ii) in paragraph 1 for "five" there shall be substituted "two"; and (iii) in paragraph 3, for "five" there shall be substituted "two";
(q) after Form CP25 there shall be inserted the Form CP25A set out in the Schedule to this Act of Sederunt;
(ii) in paragraph 4(ii) of the directions for making application, for "sheriff clerk" there shall be substituted "Scottish Court Service"; (iii) in paragraph 5(i) of Part 1, for "2 years" there shall be substituted "1 year"; (iv) in paragraph 8 of Part 1, for the words from "Is" to "handicap)?" there shall be substituted "Does your civil partner have any mental disorder (whether mental illness, personality disorder or learning disability)?"; (v) in the heading in block capitals in Part 2, for "two years" there shall be substituted "one year"; (vi) in the first paragraph of Part 2, for "two years" there shall be substituted "one year" (vii) in paragraph (b) of the statement of consent, for "two years" there shall be substituted "one year";
(t) in Form CP30—
(ii) in paragraph 3(ii) of the directions for making application, for the words from "the Sheriff Clerk" to the end of that paragraph there shall be substituted “"the Scottish Court Service" or a completed fee exemption form“; (iii) in paragraph 7(i) of Part 1 for "5" there shall be substituted "2"; (iv) in paragraph 9 of Part 1, for the words from "Is" to "handicap)?" there shall be substituted “Does your civil partner have any mental disorder (whether mental illness, personality disorder or learning disability)? “; (v) in paragraph 12 of Part 1, the words from "I believe" to "application" shall be omitted;
(u) in Form CP31—
(ii) in paragraph 8 of Part 1, for the words from "Is" to "handicap)?" there shall be substituted "Does your civil partner have any mental disorder (whether mental illness, personality disorder or learning disability)?";
(v) in Form CP32—
(ii) in the paragraph beginning "Your civil partner", for "two years" there shall be substituted "one year";
(w) in Form CP33—
(ii) in the first paragraph for "five" there shall be substituted "two"; and (iii) paragraph 1(b) shall be omitted;
(x) after Form CP37 there shall be inserted the Form CO1 set out in the Schedule to this Act of Sederunt.
(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 [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 [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 [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
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