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Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006

Type Scottish-Statutory-Instrument
Publication 2006-04-12
State In force
Jurisdiction Scotland
Department Queen's Printer for Scotland
Source legislation.gov.uk
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Made: 12th April 2006

Coming into force: 4th May 2006

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971[^f00001] 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

Amendment of the Ordinary Cause Rules

2

(e) a civil partnership action within the meaning of rule 33A.1(1)[^f00003].

(d) a warrant for intimation ordered under rule 33A.8 (intimation where alleged association).

(aa) a civil partnership action within the meaning of rule 33A.1(1);

(aa) a cause mentioned in rule 33A.1(a), (b) or (f) (certain civil partnership actions);

(1B) In paragraph (1A) above— (a) “family action” has the meaning given in rule 33.1(1); and (b) “civil partnership action” has the meaning given in rule 33A.1(1).

(aa) an action to which rule 33A.37 (decree by default in a civil partnership action) applies;

(aa) a civil partnership action within the meaning of rule 33A.1(1);

(n) an action of declarator of marriage; (o) an action of declarator of nullity of marriage.

; and

  • “mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003[^f00011]

(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[^f00014],

(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 F24A

(33.27A) An application under section 3A(1)[^f00016] (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.

; and (d) where the application is made under section 18A of the Act of 1981[^f00017] (application for domestic interdict), the other partner.

; and (g) there is no religious impediment to the remarriage of either party

(3) A simplified divorce application in which the facts set out in section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate) are relied on shall be made in Form F33A and shall only be of effect if signed by the applicant.

; and (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)[^f00020].

(c) in an application relying on the facts in section 1(1)(b) of the Act of 1976 shall be in Form F35A.

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

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

(33B) In this Chapter— - “the Act” means the Family Law (Scotland) Act 2006[^f00022]; - “cohabitant” has the meaning given in section 25 of the Act; - “the deceased” means the cohabitant referred to in section 29(1)(a) of the Act; - “net intestate estate” has the meaning given in section 29(10) of the Act; - “the survivor” means the cohabitant referred to in section 29(1)(b) of the Act. (33B) (1) An application under— (a) section 28(2) of the Act for an order for financial provision where cohabitation ends otherwise than by death; or (b) section 29(2) of the Act for an order for financial provision by the survivor on intestacy, shall be made by initial writ. (2) In an initial writ under paragraph (1)(b) the pursuer shall— (a) name the deceased’s executor as the defender; and (b) include a crave for a warrant for intimation to any person having an interest in the deceased’s net intestate estate, and a notice of intimation in Form CO1 shall be attached to the initial writ intimated to any such person. (3) Where the identity or address of any person referred to in paragraph (2)(b) is not known and cannot be ascertained, the pursuer shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to identify the identity or address, as the case may be, of that person. (4) An application under section 29(9) of the Act for variation of the date or method of payment of a capital sum shall be made by minute in the process of the action to which the application relates.

If you have ticked one or more of the boxes in Part A, you should go direct to Part C. You should only complete Part B if you have not ticked any boxes in Part A

(10A) REMARRIAGE - Is there any religious impediment to the remarriage of[YES/NO] - you or your spouse? (if yes, give details*)

If you have ticked one or more of the boxes in Part A, you should go direct to Part C. You should only complete Part B if you have not ticked any boxes in Part A

(11A) REMARRIAGE - Is there any religious impediment to the remarriage of[YES/NO] - you or your spouse? (if yes, give details*)

SCHEDULE

FORM F24A

Form of notice to defender in action of divorce where an interim gender recognition certificate has been issued

Rule 33.14(1)(c)

FORM F33A

Form of simplified divorce application under section 1(1)(b) of the Divorce (Scotland) Act 1976

Rule 33.74(1)(3)

FORM 35A

Form of citation in application on grounds under section 1(1)(b) of the Divorce (Scotland) Act 1976

Rule 33.76(3)(c)

FORM CP25A

Form of notice to defender in action of dissolution of civil partnership where an interim gender recognition certificate has been issued

Rule 33A.14(1)(c)

FORM CO1

Form of intimation of application for financial provision on intestacy under section 29(2) of the Family Law (Scotland) Act 2006

Rule 33B.2(2)(b)

Signed

BRIAN GILL — Lord Justice Clerk, I.P.D. — 12th April 2006

Explanatory note

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

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

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

Footnotes

[^f00001]: 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).

[^f00002]: 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 566, 2003/25 and 26, 2004/197 and 350 and 2005/20, 189, 638 and 648.

[^f00003]: Rule 33A.1 was inserted by S.S.I. 2005/638.

[^f00004]: Rule 9.1(1) was amended by S.I. 1996/2167.

[^f00005]: Rule 33A.34 was inserted by S.S.I. 2005/638.

[^f00006]: Rule 9.2(1A) was inserted by S.S.I. 2000/239.

[^f00007]: Rule 9.2(1B) was inserted by S.S.I. 2000/239.

[^f00008]: Rule 9.6(3) was inserted by S.I. 1996/2167.

[^f00009]: Rule 33A.37 was inserted by S.S.I. 2005/638.

[^f00010]: Rule 12.2(3) was substituted by S.I. 1996/2445.

[^f00011]: 2003 asp13.

[^f00012]: Rule 33.2(2) was amended by S.S.I. 2001/144.

[^f00013]: O.J. No. L 38, 23.12.2003, p.1.

[^f00014]: 2000 asp4.

[^f00015]: Rule 33.27A was inserted by S.S.I. 2001/144 and was amended by S.S.I. 2005/648.

[^f00016]: Section 3A was inserted by section 15 of the Family Law (Scotland) Act 2006 (asp2).

[^f00017]: Section 18A was inserted by section 31 of the Family Law (Scotland) Act 2006 (asp2).

[^f00018]: Rule 33.72 was amended by S.I. 1996/2445.

[^f00019]: Section 1(1)(b) was inserted by paragraph 6 of Schedule 2 to the Gender Recognition Act 2004 (c. 7).

[^f00020]: Rule 33.9A was inserted by S.S.I. 2005/189.

[^f00021]: Chapter 33A was inserted by S.S.I. 2005/638.

[^f00022]: 2006 asp2.

[^f00023]: Rule 41.2 was inserted by S.S.I. 2003/26.

[^f00024]: Section 1(1A) was inserted by the Family Law (Scotland) Act 2006 (asp2).

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