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

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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(1) 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:–

(e)a civil partnership action within the meaning of rule 33A.1(1)(2)..

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

(a)in sub-paragraph (c), for “improper” there shall be substituted “alleged”; and

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

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

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

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

(5) In rule 8.1(1) (reponing)–

(a)in sub-paragraph (a), after “(h)” there shall be inserted “(n) or (o)”; and

(b)after sub-paragraph (a) there shall be inserted the following:–

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

(6) In rule 9.1(1) (notice of intention to defend)(3), after “action)” there shall be inserted “, 33A.34 (notice of intention to defend and defences in civil partnership action)(4)”.

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

(a)in paragraph (1A)(5), after “action” there shall be inserted “or a civil partnership action”; and

(b)for paragraph (1B)(6) there shall be substituted the following:–

(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)..

(8) In rule 9.6(3) (defences)(7), after “rule 33.1(1))” there shall be inserted “or a civil partnership action (within the meaning of rule 33A.1(1))”.

(9) In rule 9.12(7) (options hearing), for “and 33.37 (decree by default in family action)” there shall be substituted “, 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action)(8)”.

(10) In rule 12.2(3) (further provisions in relation to interlocutors)(9), after “rule 33.1(1)” there shall be inserted “or a civil partnership action within the meaning of rule 33A.1(1)”.

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

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

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

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

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

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

(a)in paragraph (1), after sub-paragraph (m) there shall be inserted—

(n)an action of declarator of marriage;

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

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

“mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003(10).

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

(i)for the heading there shall be substituted, “Averments in certain family actions 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)(11), 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(12).”

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

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

(a)in paragraph (1)(c)(i) “and” shall be omitted;

(b)after paragraph (1)(c)(ii) there shall be inserted the following:–

(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(13),

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

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

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

(a)in the heading for “improper” there shall be substituted “alleged”;

(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”.

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

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

(a)in sub-paragraph (a), for “two years” there shall be substituted “one year”;

(b)in sub-paragraph (b), for “five” there shall be substituted “two”; and

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

(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.

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

(a)in paragraph (1), for “or separation” there shall be substituted “, separation or declarator of nullity of marriage”; and

(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”;

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

(25) For rule 33.27A(14) there shall be substituted—

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

33.27A.  An application under section 3A(1)(15) (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”.

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

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

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

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

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

(32) In rule 33.68 (defenders)–

(a)in paragraph (b) “and” shall be omitted; and

(b)after paragraph (c) there shall be inserted—

; and

(d)where the application is made under section 18A of the Act of 1981(16) (application for domestic interdict), the other partner..

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

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

(35) Rule 33.72 (certificates of delivery of documents to chief constable)(17) shall be omitted.

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

(a)in sub-paragraph (a)–

(i)for “two years” there shall be substituted “one year”;

(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)(18)”.

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

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

; and

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

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

(a)in paragraph (1), for “two years” there shall be substituted “one year”;

(b)in paragraph (2), for “five” there shall be substituted “two”; and

(c)after paragraph (2) there shall be inserted—

(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..

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

(a)in paragraph (a) “and” shall be omitted; and

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

; 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)(19)..

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

(a)in sub-paragraph (a) “and” shall be omitted; and

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

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

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

(a)for “five” there shall be substituted “two”; and

(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)(20), after sub-paragraph (e), there shall be inserted the following:–

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

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

(a)for the heading there shall be substituted, “Averments in certain civil partnership actions about other proceedings”; and

(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”.

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

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

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

(a)in sub-paragraph (a), for “two years” there shall be substituted “one year”;

(b)in sub-paragraph (b), for “five” there shall be substituted “two”; and

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

(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..

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

(a)in paragraph (1), after “dissolution” there shall be inserted “or declarator of nullity”; and

(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”.

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

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

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

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

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

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

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

(a)for “two years” there shall be substituted “one year”; and

(b)for “five” there shall be substituted “two”.

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

(a)in paragraph (1), for “two years” there shall be substituted “one year”; and

(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”.

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

CHAPTER 33BFINANCIAL PROVISION FOR FORMER COHABITANTS

Interpretation of this Chapter

33B.  In this Chapter—

the Act” means the Family Law (Scotland) Act 2006(21);

“cohabitant” has the meaning given in section 25 of the Act;

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

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

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

33B.(1) An application under—

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

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

shall be made by initial writ.

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

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

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

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

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

(59) In rule 41.2 (attachment of power of arrest to interdict)(22), after “section 1(2)” there shall be inserted “or (1A)(23)”.

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

(a)in paragraph 1(a) of Form F19, for “two years” there shall be substituted “one year”;

(b)in paragraph 1(a) of Form F21, for “two years” there shall be substituted “one year”;

(c)in Form F23—

(i)in the heading, for “five” there shall be substituted “two”;

(ii)in paragraph 1—

(aa)for “five” there shall be substituted “two”; and

(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—

(i)in the heading, for “five” there shall be substituted “two;

(ii)in paragraph 1—

(aa)for “five” there shall be substituted “two”; and

(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;

(f)Form F30 shall be omitted;

(g)in Form F31—

(i)in the heading in block capitals for “two years” there shall be substituted “one year”;

(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—

(aa)for the heading there shall be substituted the following:–

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;

(bb)in sub-paragraph (i), for “consider myself to be” there shall be substituted “am”; and

(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—

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

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

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

(10A) REMARRIAGE

  • Is there any religious impediment to the remarriage of        *[YES/NO]

  • you or your spouse? (if yes, give details);

(viii)in the heading to Part 2, for “two years” there shall be substituted “one year”;

(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—

(i)in the heading in block capitals for “five” there shall be substituted “two”;

(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—

(aa)for the heading there shall be substituted—

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;

(bb)in sub-paragraph (i), for “consider myself to be” there shall be substituted “am”; and

(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—

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

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

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

11A.  REMARRIAGE

  • Is there any religious impediment to the remarriage of        *[YES/NO]

  • you or your spouse? (if yes, give details);

(viii)in paragraph 12, the words from “I believe” to “application” shall be omitted“;

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

(j)in Form F34—

(i)in the heading in block capitals for “two years” there shall be substituted “one year”;

(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—

(i)in the heading in block capitals for “five” there shall be substituted “two”;

(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;

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

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

(o)in Form CP24—

(i)in the heading, for “five” there shall be substituted “two”; and

(ii)in paragraph 1—

(aa)for “five” there shall be substituted “two”; and

(bb)the words from “unless” to the end of that paragraph shall be omitted.

(p)in Form CP25—

(i)in the heading, for “five” there shall be substituted “two”;

(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;

(r)Form CP28 shall be omitted;

(s)in Form CP29—

(i)in the heading in block capitals, for “two years” there shall be substituted “one year”;

(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—

(i)in the heading in block capitals, for “five” there shall be substituted “two”;

(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—

(i)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“;

(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—

(i)in the heading in block capitals for “two years” there shall be substituted “one year”; and

(ii)in the paragraph beginning “Your civil partner”, for “two years” there shall be substituted “one year”;

(w)in Form CP33—

(i)in the heading in block capitals for “five” there shall be substituted “two”;

(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.

BRIAN GILL

Lord Justice Clerk,

I.P.D.

12th April 2006

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